As congress enters recess, the Bush administration is slowly proceeding with the process of drafting legislation which they will request congress to initiate when they return. This legislation is an attempt to excuse the past egregious behavior by the military and in particular the Military Police and the Military Intelligence forces deployed in iraq and in Guantanamo Bay. This legislation will center around the issue of military tribunals commissioned to try prisoners detained because they are accused of terrorism against US persons or property. Three issues stand as preeminient.
1) Use of heresay evidence.
2) Use of confidential materials.
3) Use of information derived through illegal measures such as torture.
Now torture is a sticky issue. The circumstances that Attny. Gen. Gonzales wants to protect is the situation where a person is captured and tortured by a third party and information of a probative value is uncovered, OR where intelligence operatives torture a subject to get warfare intelligence that is later proven to be factual. This information would be factual and probative in hindsight, but because it was obtained through inhumane means it is not admissable in an American court of any sort. The Attny. Gen. wishes to inovate and create a situation where this tainted information could be used in court.
Sen. Sessions has expressed the belief that if a group that is targeted by the United States doesn't respect american laws and standards of humanity, then those persons should not be given the protections which the constitution and laws of the US provide. This cannot be anything but hypocrasy. As senator Graham pointed there is the question of reciprocity. As I'm sure Sen. Sessions is aware this concept has been summed up nicely in the words of Jesus as reported by Matthew: "What ever you want men to do to to you, do precisely that to them." If he actually values the freedom mandated by the constitution (not priviledged by government fiat) then he is responsible to treat and to insure that other treat ALL persons with those standards.
With regard to confidential materials, yes as Sen. Graham has pointed out there are things too sensitive to provide to the accused. In addition the provinence of this information may be necessary to secrete and deny to the accused. In these cases, if the prosecutions case rides on such information, that information cannot be legitmated as evidence. In order for justice to be served, a defendent must be allowed to attempted to discredit such evidence through confidential communication with his counsel. If the data introduced as evidence cannot be discussed with the accused the counselor cannot adequately defend the accused. If it's secret you can't use it. This is a reasonable expectation.
The concern over heresay is the intention to allow the opinions of intelligence operatives and soldiers to be admitted into evidence without the presence of the accusing witness(es). This heresay evidence provision is clearly unconstitutional and will allow evidence to be presented that is uncorroborated and cannot be directly challenged by the accused. If that is allowed to stand there can be no claim that any verdict is just. Further there is a simple solution.Currently every court in the land allows sworn affidavit on the part of the witness to staqnd for the witness. The only objection to using affidavitt must be that the administration wants to use unsworn testimony, made in the absence of the accused. An intelligence operative or even a foreign national, could be sworn in in the presence of a cleared JAG officer and the identity of the witness would thus be protected for national security purposes. Even a line soldier could be called to a rearward position for this process without disrupting his unit undully.
These issues are not as cloudy as the administration wants to make it. The "grey" of the grey areas is introduced by the administration for the purpose of misdirection. The disire is to use military assets as police against citizens. This is not only illegal it's immoral. If police powers are desired, put federal martials in their fancy black uniforms displaying their shiny gold shields and send them forward to question and incarcerate detainees. Surly OKC, Fort Gibson and Chicago would be happy to let them go for a bit. ;)
Sen Graham disappointed me on one point. Fortunantly he isn't my representative, but I was disappointed by his statement that he believes that persons captured during this "war on terror" should not be reported to the international community. There he drifts from the very sound line of thinking he's been following through this mess. Reporting is a critical issue. Reporting dissuades people from open ended incarceration such as that suffered by Nelson Mandella and the huge numbers of US soldiers held in Viet Nam after 1972.
It is critical that the administration be transparent as the the identities of ALL persons captured and held. Habeous corpus is not a suggestion and it is critical to just and humane treatment of prisoners. If anything the revelation of such information only increases the effectivness of the war. The propaganda and moral value of such reports is astounding. Ideological groups like Al Qaeda are often more motivated by personalities than by a heartfelt attachment to principles. In these cases the capture of an important leader only served to demoralize the enemy. There is no valid reason not to make the reports mandated by the geneva convention, further there are overridding reasons to make these reports.
One of the arguements that is being presented is that "this war on terror" is so different that the previous law was not framed to envision it. In fact Sen. Warner confirmed that he as a marine in 1949 was never faced with these issues. This arguement is of course untrue. As part of a rebellious uprising against the lawful authority of parliment and of the Crown, George Washington lead an unlawful combat that was quite successful in the end. Adjunct to this John Adams and his terrorist organization "The sons of Liberty" or "The Sons of Thunder" were engaged in public beatings, bombings, arson and theft of goods and funds against British subjects and American colonists who were loyal to Great Britain.
The "Minute Men" were irregular ununiformed unlawful combatants who formed improptu militae to fight for the American independence. We rightly, and dutifully revere these Terrorists, and elected several to presidency. Great men were every one of them.
When france was annexed by Germany in WWII, Germany engaged in Nation Building identical to what we have done in Afghanistan and in Iraq. The lawful French Government was Nazi and they were allied with Germany. An unlawful combatant force was encouraged and supported by the US Government. The Frech troups in North Africa began to illegally fight against France and private citizens were equiped to commit terrorism against German military personnel, their families and their French supporters including the Lawful government of France. We unashamedly celebrate these people as patriots and heros. God bless them.
When the USSR invaded Afghanistan and tried to engage in nation building we equipped the Taliban with Stinger missiles and CIA military training and advisors. This is in fact who trained Osama Bin Ladin. We built the terroist force in Afghanistan with the intention of driving the Russians out.
When a small underequipped and disenfranchised people are oppressed by a greater and more powerful force it is the standard prosecution of War to used "commando" tatics and unlawful combatants. This has ALWAYS been american legal and military doctrine. Changing that now, for simple expediency is dangerous to the Union and the Constition, is hypocritical and will result in the torture, execution and imprisonment of Americans in the future. Reciprocity is a hard pill to swallow. I don't want to see us take that medicine.
