Wednesday, July 26, 2006

Grudging baby steps

The White House, forced by the Supreme Court to come up with a fairer way to try terror detainees, isn't really embracing the idea.

Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed “unreliable” and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.

First, let's remember that this is only a draft. Part of the purpose of a draft is to gather internal and external opinions on various provisions. The final draft could well leave out parts that I find problematic.

That said, this demonstrates the problem with having the rules drawn up by the people who captured the detainees and have an interest in "proving" their guilt, if only to validate the initial detention.

Hearsay evidence is a good example. It can be complicated, but generally it works like this: At Bob's trial, Sam testifies that he heard Dave say Bob was a terrorist.

If you aren't sure what the problem with that is, play a game of Telephone some time. There's a reason that hearsay generally isn't admissible in U.S. courts.

There are exceptions, of course, and the administration proposal would allow it only if the testimony is deemed "probative and reliable" -- whatever that means. That would be left entirely to the discretion of the judge hearing the case.

The proposal does not contain a speedy trial provision, and in fact says that a defendant could be held until hostilities are completed -- whatever that means -- even if found not guilty.

Without further detail, those proposals are simply destructive. On the other hand, some of the concerns are real but the proposed solution inadequate. For example, the administration wants to modify the rules of evidence to take into account the messy circumstances of capture. As the proposal says, "the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers."

This is true, but that is not a reason to simply ignore evidence requirements. The bill would again leave such decisions up to the judge, which seems like a license for wildly varying standards of evidence. At a minimum, the bill needs to spell out basic guidelines and guiding principles for consistency's sake.

The biggie, though, is this:

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. The measure says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights."

In other words, the administration is asking Congress to expressly forbid another lawsuit like Hamdan's, and remove the courts as a source of relief for prisoners whose rights are violated.

This might be acceptable if there was a reasonable and effective alternative recourse available. But the administration does not appear interested in providing one.

The good news is that Congress is ultimately responsible for laying out the rules; this is merely an administration wish list. I respect many of the administration's concerns; I simply do not trust them to reach a solution that is reasonably protective of defendant rights. They have too much self-interest in the outcome.

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