New York Times Editorial - Listening to the lawyers on Guantánamo

New York Times Editorial - Listening to the lawyers on Guantánamo
Copyright by The New York Times
Published: August 8, 2006


We've known for some time now that the Bush administration sidelined the military lawyers when it created the thinly disguised kangaroo courts known as military commissions to try the inmates of Guantánamo Bay.

Now we can see why.

Several hours of Senate testimony last week by the chief lawyers of the armed services provided a withering condemnation of those policies, as well as a blueprint for how to repair the damage. It was clear and sensible and, unlike Bush's system, respected the Constitution and the rule of law.

The prospects for creating such a system have improved. The administration was shamed into dropping the idea that Congress simply rubber-stamp the military commissions that were struck down by the Supreme Court. But there's a lot left to fix in the administration's awful proposal.

The basic rules: The administration wants to create a whole new set of rules for military commissions in the war on terror that borrow from military law without actually following it. The tribunals should be constructed within the Uniform Code of Military Justice, with specific and detailed changes only when absolutely necessary.

Classified evidence: The military lawyers unanimously rejected the administration's notion that prisoners could be excluded from their trials, or that judge and jury could see evidence kept secret from the accused. Those ideas violate pretty much every known theory of due process. Military courts deal routinely with secrets and have rules on how to safeguard them and still hold a fair trial.

This is not about coddling terrorists or putting unreasonable constraints on prosecutors. It's about justice and democratic values, and protecting Americans. If the United States tries a prisoner on secret evidence, anyone who captures an American could do the same thing.

Coerced evidence: No rational person believes evidence obtained through torture can be admitted in a trial. But the administration wants to give military judges the power to admit evidence obtained through coercive methods short of torture. The military lawyers said this was unacceptable as a matter of principle. Another good reason is that this administration's idea of the difference between coercion and torture is way too flexible.

Hearsay: The administration wants to admit relevant secondhand evidence. America's military lawyers disagree, saying that even in wartime, there are plenty of ways to avoid flat-out hearsay.

Defining crimes: It's hard to believe, but the administration wants Congress to allow the secretary of defense to invent crimes for which prisoners may be tried. Naturally, the military lawyers dismissed that notion out of hand. Charges applying to "unlawful enemy combatants" or any other prisoners of the United States must be detailed in the law.

The Geneva Conventions: Perhaps the toughest issue involves the Supreme Court's ruling that Bush's military commissions violated Common Article 3 of the Geneva Conventions, which, among other things, prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment."

There is talk in the administration, and on Capitol Hill, of rewriting the law to redefine America's understanding of the conventions. This is extremely dangerous. The United States would be the first nation to do so, a precedent that would put American prisoners in real jeopardy.

We're glad to see the White House finally working with the military lawyers and Congress on this issue. Some lawmakers think Bush may be softening his notions of unlimited presidential power. We're skeptical. But there is a real chance to create a system that is fair, legal and internationally respectable. It may even do something Bush's approach has failed to do: convict a real terrorist.