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Gitmo rules

July 11, 2006

THANKS TO WHAT SHOULD have been unnecessary pressure from the U.S. Supreme Court, Congress seems ready to do its duty and write rules to govern trials for suspected terrorists interned at Guantanamo Bay.

It's easy to say what those rules shouldn't be -- a rubber-stamping of the flawed procedures unilaterally adopted by the Bush administration. As Sen. Lindsey Graham, a South Carolina Republican and a military lawyer, pithily put it: "We have a chance to start over."

"Starting over" will not require aborting a significant number of trials. Of more than 400 detainees remaining at Guantanamo, only 10 had been charged under the administration's rules. That lends force to Sen. Arlen Specter's (R-Pa.) proposal that Congress set rules not only for trying detainees but for sorting out which are enemy combatants.

Still, the focus is rightly on the nature of the tribunals. In spinning the Supreme Court's decision, some administration supporters have suggested that the only problem the court found with Bush's military commissions was that they weren't created by an act of Congress.

Not so. The justices made it clear that even a congressionally established tribunal must be, in the words of the Geneva Convention, "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." That doesn't mean, as House Majority Leader John A. Boehner of Ohio irresponsibly suggested, that the court was granting "special privileges to terrorists." But what does it mean?

Like Sen. John McCain (R-Ariz.), we believe that "regularly constituted" courts would be those bound by the Uniform Code of Military Justice. These could be either courts-martial or presidential commissions that adhered to the code's procedures.

Though not identical in their procedures to civilian trials, courts-martial offer defendants a panoply of rights, including two that the administration refused to guarantee detainees -- the right to be present throughout a trial and the right not to be convicted on the basis of hearsay.

The Supreme Court left open the possibility that military commissions might be able to depart somewhat from courts-martial rules if the exception were "tailored to the exigency that necessitates it."

The burden of proof, however, should be on those who would depart from the protections accorded by courts-martial. A mere assertion by the executive branch that legal corners had to be cut wasn't enough for the Supreme Court; it shouldn't be enough for Congress either.

The Pentagon's arguments are well known: Allowing a defendant to attend all phases of his trial might expose him to information that could find its way to terrorists; a ban on hearsay or coerced testimony might rule out valuable evidence that a defendant took part in terrorist acts. So the administration has asserted -- but it hasn't been pressed to defend those assertions. It will have to do so now -- assuming, of course, that the Republican-controlled Congress takes seriously the legislative role that has been reclaimed for it by the Supreme Court.

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