Wednesday, July 26, 2006


The NY Times has obtained a copy of a draft proposal for legislation to be presented to Congress by the White House in response to the US Supreme Court Decision in Hamdan v US. From the sounds of it, the Emperor and his minions intend to further challenge the one branch of government which has not capitulated.

Rather than requiring a speedy trial for enemy combatants, the draft proposal says they “may be tried and punished at any time without limitations.” Defendants could be held until hostilities end, even if found not guilty by a commission.

Nor does the bill adhere to the military’s rules for the admissibility of evidence and witnesses because “the United States cannot safely require members of the armed forces to gather evidence on the battlefield as though they were police officers,” the proposal says.

The draft bill specifies that no matter how it is gathered, evidence “shall be admissible if the military judge” determines it has “probative value.” Hearsay statements, meaning something a witness has heard but does not know to be true, would be allowed “at the discretion of the judge unless the circumstances render it unreliable or lacking in probative value.”

The bill would also bar “statements obtained by the use of torture” from being introduced as evidence, but evidence obtained during interrogations where coercion was used would be admissible unless a military judge found it “unreliable.”

The provision allowing defendants to be excluded from a trial to prevent them from hearing classified evidence against them is likely to be among the more controversial aspects of the proposal. The bill notes that “members of Al Qaeda cannot be trusted with our nation’s secrets.” But the bill specifies that the “exclusion of the accused shall be no broader than necessary” and requires that a declassified summary of the information be given to defendants.

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. The draft measure says explicitly that the Geneva Conventions “are not a source of judicially enforceable individual rights,” meaning that in the future, terror suspects like Salim Ahmed Hamdan, a Yemeni held at Guantánamo whose case resulted in the Supreme Court ruling, cannot file lawsuits saying their Geneva Convention rights were violated.
[Emphasis added]

While the White House proposal is still in the draft stage and still has to be reviewed the military lawyers who will be operating under the system, it is clear that the Emperor has no intention of changing the ground rules under which the military commissions were originally set up. It is also clear that the White House has read the Hamdan decision to require only a Congressional approval of those ground rules, not a revamping of the system itself to comply with Constitutional requirements.

Given the Congressional capitulation to the White House on each and every occasion the White House has shrieked "War on Terra," (vide the current legislation on FISA issues being pushed by Senator Specter) the assumption held by the White House that this proposal will emerge from Congress pretty much intact may be a safe one. And that means several years from now, the Supreme Court will once again have to deal with the issue, and that means several years from now prisoners will still be sitting in cells in Guantanamo Bay or other hell holes.

Once again, it appears that the November elections will be our last hope for a peaceable ending of this madness.


Anonymous Nora said...

Clearly none of those people proposing this legislation read the Hamden decision.

Equally clearly, none of them has read the U.S. Constitution.

This is a blatant violation of the Hamdan decision and when it comes to the USSC it will be thrown out as well.

Don't they have better things to do with their time?

4:21 PM  

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