Senior JAGs Blast Star Chamber Trials

I've been seriously remiss in not finding time to post something about the Bush adminsitration's proposed legislation for Star Chamber mock trials, legislation they hope will let them have their post-Hamdan cake and eat the Constitution too.

Luckily, Avedon Carol was on top of the story. She bolds the key parts of the Bush proposal for new "commissions" that should make it unacceptable to anyone with a brain:

they 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.

defendants would be denied many protections guaranteed by the civilian and traditional military criminal justice systems.

John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000, said the rules would evidently allow the government to tell a prisoner: "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."

Avedon also notes that:

I didn't find anything in the article to suggest that there is any limit to who could be arrested and sent to kangaroo court. Peace nuns? Vegans? People who don't stay in the "free speech zones"? T-shirt-wearers? Bloggers? Anyone?

The libertarian blog, Hit and Run, wrote:

Is the Bush Administration taking a cue from how the People's Republic of China conducts secret national security trials? The two Congressional committees hearing testimony today on this scandalously un-American proposal should hold Administration officials in contempt of Congress for violating their oaths to defend the Constitution and toss them in jail.

That was Wednesday. Yesterday, it became clear that top military lawyers had exactly the same fears as liberal and libertarian bloggers.

Sen. Lindsey O. Graham (R-S.C.), a reserve Air Force appellate judge who has repeatedly expressed support for the military lawyers' viewpoint, elicited the affirmations of general dissent when he asked the lawyers if "there are still areas of disagreement" with provisions in the administration's working draft.

Perhaps the sharpest point of disagreement concerned a provision that would allow a military judge to decide that classified evidence could be used at the trials by providing it to a military defense lawyer but not to defendants. Maj. Gen. Jack L. Rives, the Air Force's judge advocate general, said: "It does not comport with my ideas of due process for . . . defense counsel to have information he cannot share with his client." The other lawyers agreed with Rives.

[Maj. Gen. Scott C.] Black [judge advocate general of the Army] also suggested that lawmakers consider eliminating a provision that would establish a new system of appeals for defendants convicted by the military commissions. Under the provision, a special military court -- staffed by military lawyers appointed by the secretary of defense -- would be empowered to review only legal issues, not the validity of a defendant's sentence.

An appeal could then go only to the U.S. Court of Appeals for the District of Columbia Circuit, a conservative bench that has sided twice with the government in detainee cases in the past two years and has been overruled by the Supreme Court.

...Black also took issue with a provision in the draft that would allow the use of evidence collected during coercive interrogations. "Sir, I don't believe that a statement that is obtained under coercive -- under torture, certainly, and under coercive measures should be admissible," he told Judiciary Committee Chairman Arlen Specter (R-Pa.).

The immediate question now becomes whether the administration will be able to force through what it wants over the objections of the senior JAG's of all services. If it does, Democrats need to stand up and say they will repeal any such legislation passed at the earliest opportunity.

The more interesting question, though, is whether the men of honor in the nation's military - starting with those who gave testimony yesterday - will have the gumption to stand up and refuse to obey orders they clearly believe to be immoral and illegal should Bush get the legislation he wants.