There's been a lot of chatter in the last few months since Colonel Morris D. Davis, former chief prosecutor for the military commissions at Guantanamo Bay, revealed that prosecutions there were being affected by undue political pressure. His assertions about the timing and evidence garnered by torture are important to note. But in this week's New Yorker, Col. Davis says that ultimately all of those things were still dwarfed by the flawed nature of the commissions themselves:
In the end, it was the structure of the commissions, rather than any single decision by his superiors, that prompted Davis to resign. 'I thought the whole idea was for Hartmann and Crawford [Bush administration appointees] to be the referees, not beholden to the defense or the prosecution,' he said. 'But if Hartmann is in our office each day, assigning lawyers, deciding which cases to bring, what evidence to use, and then supervising the case - that wasn't right.'
The Supreme Court heard an appeal of one aspect of the Military Commissions Act last December: the act's abolition of habeas corpus rights for detainees. It is widely believed that the court will hold that Guantanamo detainees have some right to file habeas corpus petitions in federal court challenging the legality of their detention, and The New Yorker article describes how the Bush administration might use that ruling and the upcoming election to pressure Congress to create another flawed and unfair system - a "National Security Court" proposed by law professors Neal Katyal and Jack Goldsmith:
[S]itting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained. There would be trials of sorts, and detainees would have lawyers, but they would have fewer rights than in a criminal case. Hearsay evidence may be admissible - so government agents could testify about what informants told them - and there would be no requirement for Miranda warnings before interrogations.
The government has proved it can criminally prosecute people in terrorism cases - in the African embassy-bombing cases, in the John Walker Lindh case, and others. That's what the government should do - prosecute them, or release them.
When the U.S. tries suspected terrorists, it must prove they committed the alleged crimes. But we also must prove that we have a system that is legitimate and fair or those verdicts will be meaningless. The ideals of American justice demand that we follow the rules - not make them up as we go along.