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July 28, 2006
Draft Bill On Detainee Trials Outlines Procedures

The Washington Post reports on the initial drafts from the Bush administration for their proposal to Congress for authorized military tribunals for detainees in the war on terror. The tribunals will use the template from our criminal justice system, with necessary modifications in accordance with fighting an ongoing war. The result shows the problems with holding tribunals while hostilities continue, for both testimony and thresholds of evidence.

Here are the parameters the White House will propose to Congress:


The draft states that using the federal courts or existing military court-martial procedures to try suspects in the war on terrorism -- described formally as "alien enemy combatants" -- is "impracticable" because they are committed to destroying the country and abusing its legal processes. Routine trial procedures would not work, it states, because suspects cannot be given access to classified information or tried speedily. Service members involved in collecting evidence cannot be diverted from the battlefield to attend trials, and hearsay evidence from "fellow terrorists" is often needed to establish guilt.

One might add that the Geneva Convention, which the Supreme Court stated is applicable to these detainees, do not allow civil trials for detainees. They have to have access to the same system of justice as the military members of the detaining force, ie, courts-martial or an acceptable substitute. This rationale covers most of the grounds on which the Pentagon objects to granting access to civilian courts.

Formation of Military Commissions

The commissions are to be established under existing presidential authorities but appointed by the Secretary of Defense or his designees. The jurors will be any commissioned, active-duty military officers considered qualified because of "age, education, training, experience, length of service, and judicial temperament." The head of each commission will be a military officer with legal credentials.

I don't see any rational objection to this proposal. Presumably, one would prefer that all members of the commission have legal credentials, but I don't know whether that would be practical.

Covered Crimes and Persons

The draft initially said that only "alien enemy combatants" who are not U.S. citizens can be tried by military commissions. That phrase is crossed off in the text of this copy, and instead it appears to cover anyone "engaged in hostilities against the United States or its coalition partners" who violate the laws of war or provisions of this bill.

The commissions have jurisdiction over 19 offenses considered violations of the laws of war, ranging from attacking civilians and protected property to using persons and property as shields and torture, maiming, mistreating dead bodies, rape and conspiracy. The commissions also can be used to try those who -- in the context of armed conflict -- hijack vessels or aircraft, destroy property, aid an enemy, or commit acts of terrorism, murder or spying.

We can expect a lot of argument over the apparent inclusion of US citizens in this process. However, it would likely only apply to terrorists detained outside of the US who had American citizenship. Congress will want to make that distinction very clear. They do not want to allow a process in which American citizens detained in the US would not have the right to a criminal trial for criminal conduct, and they would likely be correct. The hassles of pulling American troops out of the field for testimony would not apply in those circumstances, and the criminal prosecution of American traitors can be structured to maintain secrecy in most circumstances.

Trial Procedures

"A person charged with an offense under this Act may be tried and punished at any time without limitations," the bill states. Speedy trials are not required. Defendants are entitled to two principal lawyers -- one drawn from U.S. military ranks and a civilian cleared to read materials classified as "Secret."

Hearsay information is admissible at the discretion of the military lawyer presiding over the commission, unless circumstances render it unreliable or unnecessary. That lawyer can close the proceedings to protect any information that might "cause identifiable damage to the public interest" or endanger participants or national security interests. The lawyer can also order "exclusion of the defendant" and his civilian counsel, but instances of this should be "no broader than necessary." Classified evidence can be provided to the defendants in summary form but is not required if doing so would compromise intelligence sources.

I suspect this will cause some pushback as well. Hearsay has a number of applications within the civil court system in the US, more than people realize, but if the only evidence against a detainee is that someone else says he's a terrorist, that opens the door to plenty of abuse. A number of the detainees already released from Guantanamo were captured through the use of bounty hunters. The military did not consider that hearsay reliable enough for continued detention, and Congress will want to see some hard limits on the use of hearsay. Excluding defendants and their civilian attorneys will also cause some grief. I don't expect that to survive.


A two-thirds majority vote is needed to convict on any charge; a three-quarters majority is needed to order a sentence of more than 10 years. All members present must vote to impose the death penalty, and it must be approved by the president. But those enemy combatants and "persons who have engaged in unlawful belligerence" can be detained until "the cessation of hostilities," notwithstanding any jail sentence they receive from the commissions.

This shows one of the problems with tribunals in the midst of hostilities. No one who gets a lighter sentence will get released, because if they conducted terrorist operations against the US, we simply cannot allow them the freedom to do it better the next time. That final clause will get used to give people life sentences for all crimes. If that's the end result, then why bother holding the tribunals at all? The initial military reviews can determine whether a detainee has any connection to terrorism, and if not, let him go. The rest should stay detained until the end of hostilities, as the Geneva Convention allows. Sentences under this system appear superfluous.

It isn't a bad first draft, and it has more detainee protections than I would have predicted. Congress will chew this over for some time to come.

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Posted by Ed Morrissey at July 28, 2006 11:27 AM

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