The Bush speech

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Won’t the midterms be dirty. Bush has thrown down the gauntlet. In his speech today, the president announced that he is immediately sending legislation to Congress that would allow the United States to establish military tribunals for enemy combatants – the same tribunals that the Supreme Court struck down in June (finding them unconstitutional because Congress hadn’t approved them). This move is predictable. Ever since the Supreme Court decision came down, the administration has been planning to seek congressional approval. But the announcement today that more than a dozen high-value enemy combatants – including Khalid Sheikh Mohammed, one of the architects of the 9/11 attacks – have been transferred to Guantanamo Bay puts anyone wishing to debate the legality, fairness, and sensibility of these tribunals – during the fifth anniversary of 9/11 and the run-up to the midterms – in a very unenviable position. Hence the brilliant political timing.

So, it looks very likely that the administration will get to keep its closed tribunals – where those prosecuted and their counsel can be prohibited from even learning the evidence against them. I haven’t yet seen the legislation in question, which could be vastly different from what ultimately emerges from Congress. But the tribunal the administration wanted initially looked a little something like this:

(a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. 

Invoking the fifth anniversary of 9/11 as a good time to prosecute some of those involved is a brilliant political move. But let’s be clear about what the Congress will establish if, in their haste to look patriotic and tough on national security ahead of the November midterms, they allow these tribunals to sail into law. Anyone deemed an enemy combatant will still disappear to be interrogated. When we’re through with our “tough” methods, we’ll prosecute them in a manner that affords them zero rights. (Bush mentioned counsel; but will the counsel even be allowed to participate in the tribunals or will they simply have a one-off opportunity to meet with detainees? He says attorneys “will help [detainees] prepare their defense.) I have absolutely no doubt that, in many cases, we are dealing with dangerous men guilty of terrible crimes. But perhaps just as dangerous is our eagerness to legally enshrine tribunals such as these. Bush says that the terrorists want to destroy our values and our freedoms. We shouldn’t hand them a Pyrrhic victory.