You Read it Here First

The good news this morning comes from the New York Times where Kate Zernike reports that key Senate leaders and the White House are moving ever closer to a compromise that would break the impasse over the rules governing military tribunals for terror detainees. And, guess what? The compromise is precisely the one I both predicted and urged months ago here on this very blog. I am very gratified that our nation's leaders took my advice and hope I can help out the nation further in the future. (Just kidding about that last sentence-- please don't send nasty comments).

Seriously, it is indeed very encouraging, if Zernike's report is true, that the White House and the Senate may have solved the problem of what to do about showing classified evidence to the detainees without sacrificing national security. Key Senators (and the courts and many military lawyers) believe that the detainees cannot get fair trials unless they see the evidence against them. The White House has argued that terrorists should not be allowed to see the means by which the government obtained the evidence as well as the evidence itself. The compromise?

"The compromise on classified evidence," Zernike wrote, "would have a judge review the evidence and give a summary to be presented to the jury and the accused. Anything less, the senators have said, would constitute a secret trial." That's precisely the sort of compromise that work, to the apparent satisfaction of the courts, in the recently-completed terror conspiracy trial of Zacarias Moussaoui. In that case, which was before a federal civilian court in Virginia (and thus not shielded from public view like the military tribunals will be), the statements made by men like Khalid Sheikh Mohammad and Ramzi Binalshibh were summarized by the government, vetted by U.S. District Judge Leonie M. Brinkema, revised a bit here and there, and then used. Now, in the trials of Mohammed and Binalshibh, those same procedures may be used. Makes sense to me. And it'll make tribunals a reality more quickly by passing legal muster. Let's hope they don't blow it now.

By Andrew Cohen |  September 13, 2006; 9:00 AM ET
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I don't understand what types of "classified evidence" would be jeopardized that is either current and would be harmful to the US, other than the fact that the information was obtained through the use of illegal torture.

Posted by: Bob Carter | September 13, 2006 02:19 PM

So they "compromise" the Star Chamber proceedings provisions but leave intact the evisceration of habeas corpus -- expanding the power of the Executive to detain anyone without habeas relief if he or she is deemed by the Executive to be an "enemy combatant".

Posted by: HerbS | September 13, 2006 10:23 PM

our constitution is being shredded

Posted by: nick | September 13, 2006 11:54 PM

i'm opposed to the whole concept of military tribunals, except in the cases of those actually captured on a battlefield, and then only under the rules of the geneva convention. you remember that, the quaint document we signed, governing the rules of war. of course, that only identifies "a competent tribunal" to ascertain one's combatant status, not a military tribunal.

mr. bush is guilty, like caesar, of usurping powers not granted to him, either as the chief executive, or the CiC. to allow these military tribunals at all is to condone these userpations as legitimate.

when and if congress actually does declare a state of war, then we can go back and decide what unique war powers the president actually has, but not before that.

Posted by: cpinva | September 14, 2006 12:28 AM

This is a compromise only if you believe in Calvinball: moving the goalposts so that what used to be the endzone becomes midfield. This bogus compromise sacrifices:

-The confrontation right in the Constitution.
-The hearsay rule.
-The Apprendi line of case that makes clear that the jury--not the judge--finds facts.
-The inadmissibility of tortured evidence: a basic principle of Anglo-American jurisprudence recently reaffirmed (with the obligatory references to pre-1789 case law that make Constitutionally applicable) by the House of Lords.
-Maybe more; I'm a mere business lawyer, not a constitutional lawyer.

I'm willing to give up on the hearsay rule: we don't even have it in our administrative tribunals and our civil law friends think it is silly. But the others are pretty bedrock, at least in my opinion.

A real compromise would involve complete access to the information by security-cleared defense counsel, which is quite common in American courts. It would also involve extensive in limine rulings on admissibility and relevance, to avoid unnecessary greymail by the defense. It might also involve giving the judges special declassification powers, so that politicized classifications will not get in the way of public justice. But if the administration has botched matters so much that it cannot convict Khalid Sheikh Mohammed--well, I suppose we can extradite him to some jurisdiction whose administration has not tainted his case. He seems, after all, responsible for murders worldwide.

Posted by: Joe S. | September 14, 2006 07:44 PM

The administration's prposed Bill clearly is an attempt to end run the Supreme Court.s decision and the Constitution. It seems to have been written by this guy Addington who was profiled in the New Yorker recently. As a fellow alumna of Georgetown's school of Foreign srvice, I am ashamed of him. Why doesn't the Post go after him like it did members of the Nixon White House?

Posted by: Susan S | September 14, 2006 08:37 PM

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