The Gitmo Solution Already Exists

Neal Katyal's voice is one that ought to be heard loudly as the debate over the fate of the Guantanamo Bay detainees is considered in Congress this week. Katyal is one of the lawyers who argued last month's Hamdan case before the U.S. Supreme Court, the one which generated the ruling that blocked the Administration's efforts to try the men without fundamental due process rights. Katyal is out with a new online op-ed in which he argues that courts-martial should be used to prosecute and process the men out of Gitmo. It is as brilliant an idea as it is a simple (and obvious) one and both Congress and the White House could extricate themselves from this whole mess by going that route instead of trying to break new legal ground.

Contrast Katyal's sunny optimism with the gloom offered yesterday before the Senate Judiciary Committee by Steven G. Bradbury, acting assistant attorney general, whose prepared remarks contained phrases like this: "In trying Al Qaeda terrorists for their war crimes, we firmly believe that it is neither appropriate as a matter of national policy, practical as a matter of military reality, nor feasible in protecting sensitive intelligence sources and methods, to require that military commissions follow all of the procedures of a court-martial." The key word in that sentence, of course, is all, as in "all of the procedures." No one is arguing that the White House and Congress must authorize a process that grants the detainees every single one of the rights to which our own soldiers are entitled. But that doesn't mean that the vast majority of existing courts-martial procedures wouldn't fit perfectly into detainee trials.

Bradbury, the federal lawyer, tried yesterday to throw Committee members off the courts-martial track by giving them examples of how its procedures wouldn't work in the war on terror. The Uniform Code of Military Justice requires suspects to be read their "Miranda" rights before they can be questioned, Bradbury noted, which simply wouldn't work in the scenario where U.S. soldiers apprehend a suspect on or near a battlefield. Moreover, Bradbury told the Committee, evidentiary rules in courts-martial would both make it more difficult for prosecutors to prove their case and also harm the government's ability to keep classified its intelligence-gathering operations. But none of these problems are insurmountable. Here is what Katyal has to say about that:

"The existing court-martial system is already tooled up to handle terrorism cases. We've had courts-martial on the battlefields of Afghanistan and Iraq. The 'jury' hearing terrorism cases all have security clearance. Military rules already permit closure of the courtroom for sensitive national-security information, authorize trials on secure military bases far from civilians, enable substitutions of classified information by the prosecution, permit withholding of witnesses identities, and the like." Congress should listen to Katyal and discount Bradbury. It should tinker, but only just a bit, with existing rules under the UCMJ and get the process going after years and years of delay. Katyal already has done the nation a great service by bringing the case on behalf of Hamdan. And now, after highlighting the problem, he's offering a solution.

By Andrew Cohen |  July 12, 2006; 9:00 AM ET
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Based on the the Supreme Court ruling in Hamdan, does Article 3 of the Geneva conventions apply to a U.S. citizen who joined an Al Qaida cell. The way the Article is written it seems to cover domestic terrorists who foreswear allegience to the U.S. by joining a non-international armed conflict.

My assumption here is that in our engagement Al Qaida is not an international entity, that the U.S. is a "high signatory" to the convention, and that the Supreme Court ruling in Hamdan applies to all members of Al Qaida wherever they battle the U.S. and whatever their nationality.

Does this mean we could try civilian U.S. citizens arrested in the U.S. in a court martial? I think I would gladly accept that as an alterantive to giving them a public trial. Especially since evidence of charater (or its failing) is allowed in courts martial.

I guess this would apply to those buffoons down in Florida. Maybe I could live with that.

Posted by: Constitionalist | July 12, 2006 02:45 PM

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