Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Washington Post reports on a draft of the administration's proposal for how to structure the military tribunals. In stunning form, the proposal turns out to be a means of adding entirely new executive powers that we've never seen before:
A draft Bush administration plan for special military courts seeks to expand the reach and authority of such "commissions" to include trials, for the first time, of people who are not members of al-Qaeda or the Taliban and are not directly involved in acts of international terrorism, according to officials familiar with the proposal.The plan, which would replace a military trial system ruled illegal by the Supreme Court in June, would also allow the secretary of defense to add crimes at will to those under the military court's jurisdiction. The two provisions would be likely to put more individuals than previously expected before military juries, officials and independent experts said.
And there's more...
Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.
An early draft of the new measure prepared by civilian political appointees and leaked to the media last week has been modified in response to criticism from uniformed military lawyers. But the provisions allowing a future expansion of the courts to cover new crimes and more prisoners were retained, according to government officials familiar with the deliberations.
The military lawyers received the draft after the rest of the government had agreed on it. They have argued in recent days for retaining some routine protections for defendants that the political appointees sought to jettison, an administration official said.
They objected in particular to the provision allowing defendants to be tried in absentia, said the official, who spoke on the condition of anonymity because he was not authorized to describe the deliberations. Another source in contact with top military lawyers said, "Their initial impression is that the draft was unacceptable and sloppy." The source added that "it did not have enough due-process rights" and could further tarnish America's image.
Even the military's attorneys are objecting to this proposal; that really ought to tell them something. This isn't the ACLU objecting (though they do), it's the JAG corps. In particular, it's their top uniformed officers in the JAG corps, one of whose recently retired members summed up the administration's position this way:
"We know you're guilty. We can't tell you why, but there's a guy, we can't tell you who, who told us something. We can't tell you what, but you're guilty."
Can you imagine anything more contrary to our constitutional system than that?
Comments
This is the scariest post I have read in some time, and it goes perfectlly with your Onion post on expanding Bush's powers.
Posted by: No One of Consequence | August 4, 2006 9:22 AM
Does the phrase "Star Chamber" ring any bells?
This is classic Bush admin passive-aggressive resistance. "Oh, the Supreme Court said our military tribunals are illegal. Oooookay. We'll chaaange them. How do you like . . . THE RUMSFELD INQUISITION?"
One can hardly wait until President Al Sharpton gets to use these powers.
Posted by: Ed Darrell | August 4, 2006 9:38 AM
Ed,
You're overreacting. Just sing along and join the fun.
Bushland, Bushland,
Uber alis,
Uber alis,
in za vorld!
Posted by: Skip Evans | August 4, 2006 10:15 AM
NOOOOOOOOBODY expects the Rumsfled Inquisition!
Aside from anybody who's been watching US politics since 2001, that is.
Posted by: Joshua | August 4, 2006 11:10 AM
Gee, wonder if anyone will get the "comfy chair".
Posted by: Skip Evans | August 4, 2006 11:19 AM
I much prefer the Anglican inquisition from Eddie Izzard's HBO special - "You must have tea and cake with the Vicar or you DIE. Tea and cake or death, tea and cake or death. Welcome to Church of England, cake or death? Uh, cake please."
Posted by: Ed Brayton | August 4, 2006 11:31 AM
I wrote about this on my blog yesterday. Although I wasn't aware of the JAGs' opinion on it then. I'n not surprised though. What kind of ethical system could this possibly fit into? This is part of what I had to say:
Here's a link to the article if you want to read it all: Att. General Gonzalez Gives Justice the Finger
Posted by: James Allen | August 4, 2006 12:54 PM
Posted by: steve s | August 4, 2006 1:14 PM
Oh, for the days when terrorism was a criminal issue and not a military one. If you blow up a bus, you're a criminal. They arrest you, try you, and put you in jail. If a country explicitly supports you in blowing up the bus, they're risking a war, but you're still a criminal to be arrested and tried. These weird new categories of "double plus ungood criminal" are a natural consequence of the "War on X" mentality. It's almost inevitable that when you unnecessarily conflate a criminal issue with warfare, it becomes a "war" but not really a "war war" and the rules of both war and criminal proceedings fly out the window. We shouldn't be surprised that we're getting the worst of both worlds.
Posted by: Troublesome Frog | August 4, 2006 3:09 PM
As I understand it, a bill to enact this has not yet been written, but the White House draft version is circulating in Congress. Both the House and the Senate are currently in recess, so take the next couple of weeks to draft letters/emails to your congressman/woman and senator opposing this and send them, especially if one of your reps is a fence sitter, in particular a Republican at risk of losing his job this November. Congress needs to be told by more than the New York Times that this is a non-starter. Bush needs a little ermine trimmed from his cape.
Posted by: Keanus | August 4, 2006 5:13 PM
So the Onion's satire turns into fact....
Posted by: Jim S | August 4, 2006 8:53 PM