Kinder, Gentler Military Tribunals

I’ve never been convinced that military tribunals were the best way to handle terrorists. On the other hand, I’ve never been convinced that they’re not. I am pretty sure that a military tribunal can provide all of the essential elements of due process to a defendant, if it is structured and run properly. I am also pretty sure that no one is going to be satisfied with the President’s decision to revert to using military tribunals to provide trials to prisoners suspected of terrorism.

For one thing, it represents a broken campaign promise:

[President Obama] will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries. (Appears on page six of the linked campaign document.)

More importantly, it represents a reversion to a controversial policy of the Bush Administration. The fundamental security-versus-due-process problem remains, whether the President is a Republican or a Democrat.

The fundamental problem deals with due process and the evidence. On the one hand, the information needed to convict some of the bad guys is very sensitive and classified, and cannot be allowed to be made public. But on the other hand, due process requires that all of the evidence relevant to the case be disclosed to the defendant. It also requires that the defendant get his choice of counsel to assist him with that evidence and the procedures. The result is that a lawyer, not of the government’s choosing, is going to have to be given access to sensitive, restricted information. That lawyer then becomes a security risk, whatever the results of the tribunal.

According to the WaPo, “The Obama administration’s proposed changes would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment and give defendants more latitude to pick their own lawyers.” To me, this seems like the worst of both worlds. If we have evidence, and we’re giong to have military tribunals to evaluate that evidence, then we should use it. Evidence gained from “cruel treatment” or “harsh interrogation techniques,” in my mind, is weaker evidence than that gained in other ways, and a defense attorney can certainly point that out to the finder of fact. Query as to how much of that evidence there is, query as to whether application fo the exclusionary rule will be useful from either a justice or a prosecutorial perspective. Tinkering with the hearsay rule doesn’t seem that significant to me one way or another, in the abstract.

What’s wrong with the Federal Rules of Evidence, anyway? There are a ton of holes poked in the hearsay rule under the FRE and there is already a procedure in place in Article III courts to deal with motions to exclude evidence under the exclusionary rule. Unfortunately, none of the research I’ve done has disclosed the nuts-and-bolts differences between these military tribunals and a standard U.S. District Court so it’s a little bit difficult for me to opine on how, exactly, the wheel is being reinvented here. I’m sure that I can find out if I dig deeper but I’ve not done that this morning.

Any lawyer who represents a defendant in one of these things should be able to independently qualify for a security clearance. I was not aware that there were other restrictions on the choice of defense counsel than that, and there should not be any more (or less) restrictions than that.

I’m not perturbed by Obama’s decision to break this campaign promise. If I had been an Obama supporter, though, I would be. It’s a partial vindication of President Bush. But what I haven’t heard, from anyone, is why these kinder and gentler military courts are the way to get us both security and justice.