Administration lawyers on Capitol Hill yesterday that the new proposed trials were markedly different from the previous system, and would pass court scrutiny. Among other changes, the new proposal sets up trials overseen by a judge who would not also serve as part of the jury. Defendants would be given two appeals, and could not be tried twice.Let's back up, and put that in context. Apparently there was a "committee" working in the White House, "run by J.D. Crouch, the deputy national security adviser." This committee: "held more than 20 meetings...in secret at the White House, and a half-dozen more higher level sessions with Mr. Bush’s national security team, including Mr. Cheney, Ms. Rice, Defense Secretary Donald H. Rumsfeld and the director of national intelligence, John D. Negroponte." And this band of legal geniuses apparently came up with a plan that would:
1) allow the judge to be part of the jury
2) eliminate appeals, and
3) allow "detainees" to be tried as often as necessary to get a conviction.
4) Oh, and on "secret evidence." As Sen. Lindsay Graham says of that last point:
“ ‘Trust us, You’re guilty, We’re going to execute you, but we can’t tell you why’? That’s not going to pass muster, that’s not necessary.”Gee, ya think? Constitution just might have something to say about that, might it? It almost goes without saying that Sen. Graham's observation should be obvious to anyone who's taken a civics course or passed the US citizenship exam. But the band of geniuses in the White House were "surprised" by the Hamdan decision, the one that said the Constitution actually rules in these situations. But it gets worse, because really, the argument against all of this is a very simple one: do unto others as you would have them do unto you. Otherwise you can't complain when they torture and imprison and otherwise mistreat your people:
On one side, Mr. Warner, Mr. Graham, and Senator John McCain of Arizona have argued that the system must provide enough guarantees of fairness that the nation would feel comfortable having its own troops tried under it. This is important, they argue, to repair a national reputation that has been damaged internationally by revelations of abuse at Guantanamo Bay and Abu Ghraib, and to set a precedent for how other countries would try American troops.But it shames me to admit I'm a member of the same State Bar as John Cornyn, or to admit he ever sat on the Texas Supreme Court:
On the other side, Senators John Cornyn of Texas and Jeff Sessions of Alabama have shown more inclination to endorse the president’s approach. Mr. Cornyn said after a round of meetings yesterday that he still supported the president’s approach on classified evidence, but that he hoped the differences could be bridged. “We’re trying,” he said.Oh, and the Administration's response to Sen. Graham's point?
“In the midst of the current conflict, we simply cannot consider sharing with captured terrorists the highly sensitive intelligence that may be relevant to military-commission prosecutions,” said Steven Bradbury, the acting assistant attorney general in the Office of Legal Counsel.In other words, we still don't want to recognize the fundamental right to a fair trial. After all, our way of life is at stake. The way of life which includes the right to a fair trial.
Somewhere Kafka is saying: "I told you so." But the good news is, this doesn't seem to be going anywhere anymore. And maybe after November, it will even be reversed. Although I still think we've gone so far down this particular rabbit hole that no politician is going to bring us back. Who, after all, represents the "pro-terrorist" vote?