A Republican Fight over Military Tribunals

Not surprisingly, George Bush and his supporters are trying to paint Democrats as weak on terror as they struggle with legislation setting up a legal process for prosecuting terror suspects. The problem, as the New York Times reports, is that the debate pits Bush, Cheney and company against fellow Republicans and even military lawyers:

The Bush administration’s proposal to bring leading terrorism suspects before military tribunals met stiff resistance Thursday from key Republicans and top military lawyers who said some provisions would not withstand legal scrutiny or do enough to repair the nation’s tarnished reputation internationally.
Democrats, meanwhile, said they were inclined to go along with Senate Republicans drafting an alternative to the White House plan, one that would allow defendants more rights. That left Republicans to argue among themselves about what the tribunals would look like and threatened to rob the issue of the political momentum the White House hoped it would provide going into the closely fought midterm elections.

Why would military lawyers presume to disagree with the commander in chief?

Brig, Gen. James C. Walker, the top uniformed lawyer for the Marines, said that no civilized country should deny a defendant the right to see the evidence against him and that the United States “should not be the first.”
Maj. Gen. Scott C. Black, the judge advocate general of the Army, made the same point, and Rear Adm. Bruce E. MacDonald, the judge advocate general of the Navy, said military law provided rules for using classified evidence, whereby a judge could prepare an unclassified version of the evidence to share with the jury and the accused and his lawyer.

One of the most prominent advocates for an alternative approach is Lindsey Graham, who has moer than a passing familiarity with the military justice system:

“It would be unacceptable, legally, in my opinion, to give someone the death penalty in a trial where they never heard the evidence against them,” said Senator Lindsey Graham of South Carolina, who has played a key role in the drafting of alternative legislation as a member of the Armed Services Committee and a military judge.

Senators John McCain and John Warner have joined Graham in arguing that the U.S. system of military justice that would be considered fair is used to prosecute Americans. As the Washington Post reports, the three have put forward an alternative proposal:

A rival set of rules circulated earlier this week by Warner, McCain and Graham would bar any use in the trials of secret evidence or information obtained from "cruel, inhuman, or degrading treatment" and would admit information from coercive interrogations only if the military judge found it reliable and pertinent. The proposal would allow trials to be closed only to protect information that would damage national security, leaving out any reference to "the public interest" as a reason.

Why should we care how foreigners are treated? Many who have served in uniform believe that the treatment of U.S. military personnel by foreign powers is linked to how we treat foreign fighters. Simply put, U.S. military leaders have long supported the Geneva Conventions because they believe that these basic international standards protect Americans.