Live from the Nuke Free Zone

The White House draft rules for trying detainees in light of the Supreme Court’s recent decision on the matter… basically ignores the Supreme Court’s recent decision on the matter.  It’s essentially asking Congress to say it’s okay to continue doing the same things.  Pick your favorite news site, they’ll all be carrying it.

What I want to talk about is the underlying principles that the draft exposes.  In multiple respects, the bill the Administration is circulating lacks any appreciation of the intellectual underpinnings of Western democracy.

Let’s begin with the following quotes:

“We are working to strike a balance of a fair system of justice that deals with terrorists who don’t recognize the rules of war.”

(On allowing defendants to be excluded from a trial while classified evidence is presented): “members of Al Qaeda cannot be trusted with our nation’s secrets.”

Have you noticed something about the phrasing here?  The rules assume that the defendant is guilty.  The purpose of being allowed to see the evidence against you is that you would be able to rebut it if it is wrong, but that possibility is excluded from the Administration’s thinking.

The bill explicitly argues for the admission of hearsay evidence, if the evidence seems to the judge like it would be “probative,” i.e. “furnishing evidence or proof.”  Yeah, a lot of hearsay does that, and unfortunately the original source can’t be cross-examined, which is why we don’t allow it in court; someone can make a baldly false declaration and hearsay of it could get admitted unchallenged.  Again, however, the possibility that any innocent men are being held doesn’t cross the Administration’s mind.

Oh, wait, yes it does.

Defendants could be held until hostilities end, even if found not guilty by a commission.

Charming.  It actually makes sense, from a paranoiac point of view: if somebody was innocent, and was held captive for years for no reason, upon their release, they, you know, might be a little ticked.  Possibly ticked enough to become non-innocent.  A man of principle might have just figured that holding innocent people was wrong, but that’s such a wacky, antiquated point of view.

So how about the ever-popular question of evidence gained by torture?  Most of us would hold the principle that such evidence should be rejected because torture is wrong.  The Administration?  It should be rejected because it’s commonly unreliable.  But you can keep it if it looks reliable.  Just call the interrogation “coercion”:

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.”

But wait, what about the Geneva Convention, which the Supreme Court explicitly said applied to detainees?

The Administration says, no it doesn’t.

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.

Understand what just happened here.  This isn’t weaseling around something.  This isn’t sneaky wording.  This isn’t making something a moot question.  This is the President asking Congress to undo a treaty intended to keep soldiers from being tortured, which was written because people decided there were things that civilized people shouldn’t do.  But the underlying principle isn’t on the Administration’s mind; only the immediate ability to do what they want to do.

This is the party that claims to stand for moral values.