Thursday, July 30, 2009

Move the Meter One Notch Toward Hope

Today I will move the needle on my hope versus despair meter one notch toward hope based on this report. Assistant Attorney General David Kris has testified to the Senate that so far the Obama Administration has reviewed over half the cases of Guantanamo detainees and has yet to find even one who is unprosecutable, but must be detained indefinitely. Admittedly, the other half remain. But so far this should stiffen the spines of any members of Congress who are unwilling to authorize indefinite detention without charges. The real danger of such an authorization, after all, is not so much that it may allow a possibly necessary but very messy way of dealing with GTMO detainees whose cases the previous Administration has hopelessly botched. The real danger is how such a power might be used in the future.

Also encouraging is that both the Obama Administration and the proposal in the Senate favor a presumption in favor of trial by civilian court over trial by military tribunal. Factors the Administration proposes considering in deciding what forum to use include what it calls "strength of interest" factors such as the severity of the offenses charges, the identity of the victim, the location they took place and the context in which the accused was captured; "efficiency" factors such as protection of intelligence sources, foreign policy issues, and legal or evidentiary problems, "other prosecutorial considerations," such as whether the forum allows full presentation, and the sentences available. It proposes deciding what forum to use on a careful case-by-case basis.

More equivocally on the hope/despair spectrum, some of these are legitimate factors to take into account, but others are not. The Detention Policy Task Force's Preliminary Report points out that when terrorists are captured under true battlefield conditions, not all evidentiary requirements of the criminal justice system can be met (i.e., Miranda warnings, exclusion of hearsay, collection of evidence under battlefield conditions, etc). This is a reasonable point. Protecting classified sources may also be a legitimate consideration. But many of the other factors sound suspiciously like simple matters of which forum makes conviction most likely. And making the decision on a case-by-case basis essentially means allowing the executive to forum shop at will. What we need is not a case-by-case determination, but hard and fast rules about when trial by military commission is or is not allowed.

Again on the hope side, the Preliminary Report exclusively defends the use of military tribunals and makes not attempt to argue the case for indefinite detention without trial. The Report advocates eight main changes in the Bush-era military commissions: (1) forbidding coerced statements, (2) rules on hearsay more similar to regular court martial rules, (3) admitting only "voluntary" statements by the accused (I am not clear how this differs from (1)), (4) adopting a modified version of civilian federal court rules on the use of classified material, (5) allowing greater authority to appellate courts, (6) requiring the govenment to disclose exculpatory evidence to the accused, (7) limiting the commissions to trying law of war offenses, and (8) a sunset provision. I have no confidence whatever in sunset provisions. Reapproving a sunsetted statute is rarely more than an empty formality. As for the other changes, it is hard to know what to make of them. Yes, there is some specificity here, but it still leaves a great deal of room to maneuver. The changes set forth could prove to be little more than nicer window dressing for the old Bush Administration military commissions, or it could turn them into a modified form of court martial. The devil is in the details. Alas, I have not seen either what the Senate is proposing or an in-depth analysis of it and therefore cannot say where it weighs in on the spectrum.

That being said, there is plenty of testimony in despair territory as well. A few weeks ago, Defense Department General Counsel assured the Senate that if by some miracle a terrorism suspect is acquitted, he will still be detained indefinitely as if nothing had happened. More recently, another witness said acquitted terrorism suspects will be deported (perhaps to torture and execution).

Hm. Maybe I am moveing the needle on my hope/despair meter in the wrong direction.

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