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Thursday, September 7, 2006
The Looming Showdown on Military Tribunals
By Dr. Steven Taylor @ 8:21 am

Via the NYT (Proposal for New Tribunals Would Hew to the First Series) we have in the first paragraph what is going to be the rub in this whole KSM Gitmo move:

Under the measure that President Bush proposed on Wednesday, Khalid Shaik Mohammed and other major terrorism suspects would face trials at Guantánamo Bay in military tribunals that would allow evidence obtained by coercive interrogation and hearsay and deny suspects and their lawyers the right to see classified evidence used against them.

The usage of evidence in these tribunals, and the transfer of these high value prisoners from their CIA hidey-holes to Gitmo is going to launch a debate in spades. The President has, as I noted yesterday, very deftly gained an advantage in the debate here by making it about these specific prisoners.

The debate is going to shape up along the lines that anyone who has concerns about the process are going to have these particular prisoners thrown in their face and then we will here the whole “the Constitution isn’t a suicide pact” routine. What it should be is a debate about who we are and what will actually lead to our long-term security.
I fear that Spencer Ackerman, writing at TNR’s The Plank is at least partially, if not completely, correct in assessing the direction that this is all going:

However, look deeper and not only is the White House not giving an inch in the debate, the KSM Shift of 2006 actually takes a mile. That’s because, to be blunt, we have tortured the dickens (to use a Rumsfeldian locution) out of KSM. All Guantánamo detainees, according to the Supreme Court, have the right to at least some access to the U.S. legal system. KSM, therefore, will pose an interesting test: Should his probable trial reflect the legal doctrine of the “fruit of the poisoned tree”-that is, will evidence obtained through torture be admissible in the military tribunals or not? McCain’s Detainee Treatment Act of 2005 says “of course not!” but Bush indicated in his infamous “signing statement” that he thinks he has the right to torture whoever he pleases. Now Congress will face a very unpleasant question: Unless it rejiggers the military tribunals to bless torture/coercion, KSM and other Al Qaeda figures might in fact be set free by the courts. Is Bush so cynical as to force Congress into the odious position of either setting the stage for murderers to walk out of Gitmo or blessing torture? Of course he is!

If anything, the opportunity for quite the harmonic convergence of debate is presenting itself: what to do with the Gitmo detainees, what is “torture”, and what is the legal significance of signing statements-all in one big bundle. Of course, throw in partisan politics in the context of a looming election which will decide control of the Congress and you don’t get the ingredients of a particularly useful debate. It is a shame, but it is nonetheless true.

In some ways I hate to go in this direction with my own analysis, but I will anyway. Much hay was made (rightfully so) about President Clinton’s predilection to overly parse the English language to his own benefit, the quintessential example of which being the infamous statement that “[i]t depends on what the meaning of the word ‘is’ is”. However, as problematic as it was for the President of the United States to stoop to such semantic shenanigans in a legal proceeding, the ultimate importance of the debate was limited to Mr. Clinton and his integrity, such as it was.

However, we are about to enter another semantic battle, but this time it isn’t going to be about a President dissembling about sexual dalliances. In this case it is going to be about what the meaning of the phrase “coercive interrogation” is and the stakes are going to be about what the values of the country and our image abroad for years to come. This is no minor issue and not one that should be dismissed just because there are some obviously very bad people involved.


  1. This is very important and yet people won’t give this half the attention Bill and Monica received. The Christians don’t care if the enemy is tortured (generally speaking).

    Comment by The Misanthrope — Friday, September 8, 2006 @ 1:01 pm

  2. […] I have not written much about “signing statements” (a quick search of my archives only turns up this post, and it only references the issue in the context of a larger discussion). I will confess that my initial response when the topic first emerged was that the notion that the president was indicating his understanding of the law for the purposes of posterity (and future court battles) was legitimate. Indeed, the basic practice of such statements, symbolic and otherwise, goes back over a century. […]

    Pingback by PoliBlog: A Rough Draft of my Thoughts » Bush and Signing Statements — Friday, October 6, 2006 @ 6:53 am

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