Hamdan and the real beneficiaries of robust procedural and evidentiary rules

Brian J. Foley [Florida Coastal School of Law]: "The Supreme Court has finally spoken on the military commissions, after four-and-one-half years. Now it's time for Congress to step up - as it should have four-and-one-half years ago, when the Administration first created these commissions and proceeded to build a fake justice system to try suspected 'enemy combatants.'

Let's hope that Congress rises above its now-habitual subservience to the Executive and recognizes that it should serve the rule of law instead. Let's hope that Congress requires a real justice system. Better yet, why not end these shenanigans and simply try these suspected terrorists in our federal courts, which were apparently adequate for Zacarias Moussaoui? Then Congress can focus on crafting necessary legislation, and the Executive can focus on enforcing our laws.

Such a move may sound idealistic, but it's actually pragmatic. Real rules of procedure and evidence, instead of rules that simply make it easy for the Executive to win its cases against 'enemy combatants,' are part of the important and necessary oversight of the Executive. Robust rules of procedure and evidence make it much harder for the Executive simply to squeeze a confession out of someone and declare 'mission accomplished,' or to use hearsay or other unreliable evidence and then tell the public that it has convicted another 'terrorist' and thereby made us all safer -- and accumulate unwarranted public support and increase its own political power. Robust rules require the Executive to actually investigate and gather reliable evidence if it wants to win its cases — actions that can help us disrupt and disable terrorist organizations.

The real beneficiary of robust rules is not 'terrorists,' but the public. Congress and the Executive should have recognized this four-and-one-half years ago. Our leaders have a chance to recognize this now — and that our well-developed federal court system is the proper place for trying people charged with crimes."

 

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