The Washington Post says Attorney General Alberto Gonzales has confirmed a report in The New York Times that said the Bush administration is circulating a draft of legislation that would legalize unfair trials of so-called enemy combatants.
The proposed legislation would allow defendants to be excluded from their own trials, according to The Times, and would generally legalize the military tribunals that were struck down by the Supreme Court a few weeks ago. The Times says:
The draft measure describes court-martial procedure as "not practicable in trying enemy combatants" because doing so would "require the government to share classified information" and would exclude "hearsay evidence determined to be probative and reliable."Funny, but I always thought the reason hearsay (testimony based on what witnesses have heard, rather than what they know from their own observation) was excluded precisely because it isn't reliable. At least, that's what I learned in law school.
According to the news reports, they're circulating the draft among military lawyers, though I'm sure they're doing this in an effort to get those attorneys (who have generally opposed the tribunals) to support the bill. I doubt the Bush people really want JAG lawyers' professional opinions or have any intention of incorporating any of their suggestions into the bill.
Obviously the administration paid no attention to the principles underlying the Hamden decision and is only looking for ways to get around it. We must hope that Sen. Lindsay Graham -- a Republican who has served as a military lawyer -- sticks to his guns on this issue. It is depressing to contemplate that an administration that is supposedly "promoting democracy" abroad is so devoted to completely undermining the basic principle of due process of law.
The Times got a copy of the legislation from an official at an agency that is reviewing it, so their reporters have actually seen the proposed 32-page bill. Alas, they have not made their copy available to their readers. If anyone else has posted a copy online, I can't find it as yet. If I can find it, I'll post a link.
On a related note, Washington Post columnist Ruth Marcus says that Alberto Gonzales is making John Ashcroft look good! She observes:
But as I watched Gonzales testify before the Senate Judiciary Committee last week, it struck me: In terms of competence (the skill with which he handles the job) and character (willingness to stand up to the president), Gonzales is enough to make you yearn for the good old Ashcroft days.I don't think I'd go that far -- Ashcroft showed such contempt for the Constitution that he should never have been allowed to hold the job -- but it is pretty clear that Gonzales does whatever Bush wants him to do. Either Gonzales lacks integrity and moral fiber, or else he has drunk the White House Kool-Aid and really believes that trampling on civil rights is the way to promote democracy in the world. I'm not sure which is worse.