[JURIST] US Rep. Duncan Hunter (R-CA) and other leading Republican members of the House Armed Services Committee [official website] on Wednesday pushed for legislation authorizing military commissions for terror suspects detained at Guantanamo Bay during a committee hearing [recorded audio] on how the government should proceed in bringing terror suspects to justice following the Supreme Court decision in Hamdan v. Rumsfeld [text]. Hunter, who earlier this week warned against releasing detainees [JURIST report], said that using an alternative military court-martial structure would be inappropriate as it could force detainees' release and create evidentiary problems. In his prepared opening statement [PDF text], Hunter said:
In time of war it may not be practical to apply to rules of evidence that we do in civil trials or court-martials for our troops. Will commanders and witnesses be called from the frontline to testify in a military commission or can we use reliable hearsay and sworn affadavits? I note that hearsay is allowed in international war crimes tribunals for Rwanda and Yugoslavia.Also testifying was Principal Deputy General Counsel for the Department of Defense Daniel Dell'Orto, who in his own opening statement [PDF text] also warned against establishing a court-martial system for detainees that conforms with the Uniform Code of Military Justice [text]. Dell'Orto said that such a system would impede intelligence collection if detainees were told before interrogations that they did not have to answer questions, that they are entitled to legal counsel, and that their answers may be used against them in a court of law. Democrats on the House panel responded that the court-martial system can be altered so that terrorist detainees do not receive full protections under the US constitution. Retired Rear Admiral John Hutson, a former Navy Judge Advocate General who is currently the dean of the Franklin Pierce Law Center, said during his opening statement [PDF text]:
So lets see if there is a practical need or reason to change the rules. We have to give the executive the power to fight this war. This is not a separation of powers issue, it is an issue of how to defeat the enemy. The Supreme Court says we need an adjustment, but in doing so lets not forget our purpose is to defend our nation against the enemy. We won't lower our standards, we will always treat detainees humanely, but we can't be naive either.
Many people will urge you to simply authorize essentially the same commissions the President created with only minor changes. I believe this is the worst option of all because the Court has already found them to be lacking in significant, but correctable, ways. The Court gave the Congress and the Administration a road map to follow. We must avoid more court challenges or another failure in this important work.In a related development Wednesday, a White House spokesman said that parts of a 2002 executive order [text] specifying that Taliban or al Qaeda detainees would not be protected by the Geneva Conventions would be voided in light of the July 7, 2006 Defense Department memo [JURIST document] applying the Geneva Conventions to all detainees in military custody [JURIST report]. AP has more.
On the bookshelf of virtually every U.S. military judge advocate, stationed anyplace on the globe, sits a thick burgundy soft cover book. That book is the envy of every other armed force in the world. Congress enacted the core it in 1951 and amended it in 1969. It has withstood close scrutiny by the Supreme Court of the United States, the same court that found such serious fault with the military commissions as currently designed. The book I refer to, of course, contains the Uniform Code of Military Justice and the Manual for Courts-Martial.
The UCMJ and the MCM easily comport with the requirements of the Hamdan decision and also with Common Article 3 of the Geneva Conventions. As required by Common Article 3, they provide "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." ...
That is not to say, however, that the court-martial system as contained in the UCMJ and MCM couldn't or shouldn't be modified in some narrow and specific ways. For example and fundamentally, jurisdiction would have to be conferred by Congress in order to create military commissions. The Military Rules of Evidence may need to be modified in some narrow and well defined ways to accommodate the vagaries of the environment of the war of terror. The rules regarding hearsay and chain of custody may be examples of this. But none of these are difficult or dramatic. And if done sparingly, none would undermine the validity of the basic construct.