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Eric writes: "We are agreed, yes? That procedural protections in civilian courts are too high for war-on-terror prosecutions? ... If yes, then there is just an empirical question of whether we should demand that federal judges relax procedural protections in terrorism cases or use an alternative military-commissions system—a question that it is far too early to answer because there is so far very little evidence as to how this alternative system will perform."
The flurry of posts on the military commissions seems to me to obscure the elephant sitting in the middle of the room, namely, that the principal "relaxed procedural protection" at issue here—the one that has caused the administration to insist upon newfangled commissions rather than courts-martial all along—is that a great deal of the relevant evidence has been obtained unlawfully.
That is to say, as with most of the great debates in the "War on Terror," even when the particular dispute is nominally about the legality of military commissions . . . it's all about the torture.
Not only would much of the evidence in these cases be inadmissible because it's the fruit of coerced testimony, but the administration is hellbent on keeping secret what it has in fact done to the detainees in its control. In any legitimate proceeding—be it court-martial or civilian trial or military commission or even congressional investigation—that information would and should be disclosed. And in a court-martial or civilian trial, there's a good chance that would happen. (Wish I could say the same about congressional hearings.) But that's nonnegotiable for the Bush administration . . . and so, the endless debates about military commissions, which are designed largely to obscure the manner in which we obtained the relevant evidence.
The interesting question, then, is whether the McCain or Obama administration would be more willing in 2009 to make transparent what happened during these interrogations—after which perhaps we could figure out whether there is any tribunal in which fair trials could take place, without unreliable evidence gleaned from torture and cruel treatment. (That is to say: It's awfully difficult to conduct war-crimes trials when a good portion of the evidence was obtained by way of ... war crimes.)
(There's one other big issue, too—namely, that it is not at all clear that a great deal of the conduct alleged against some of the lower-level defendants, such as Hamdan and Khadr (e.g., driving bin Laden, delivering weapons to the front, tossing grenades at soldiers), actually violated any laws of war that were in place at the time of the conduct. But I don't see why those sorts of questions can't be resolved fairly, without regard to the nature of the tribunal.)
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Also, our point wasn’t to issue any sort of blanket indictment of military justice, or American justice, as a whole. To the contrary. Same government, yes, but very different rules—and in the traditional court systems, it’s the courts that make those rules, not the executive branch. Not so for the tribunals. That was one of the main bases in the first place for Salim Hamdan's suit challenging the commissions in. In the wake of the Supreme Court's decision in his favor, Congress got into the act, both verifying the Bush administration's call to establish the tribunals and demanding a higher standard of due process for them. We'll find out in June, presumably, how that sits with the justices.
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Eric, I don’t think you’ve correctly stated the Bazelon/Lithwick standard here: It’s not that all Pentagon balking is per se evidence of crap commissions. It’s that the balking, plus the seven years of after-the-fact tinkering (the CSRT “do-overs” or the Bush-appointed Court of Military Commission Review), plus the international condemnation, plus the choose-your-own-ending playbook are evidence of crap commissions. Your characterization of our argument as “so long as the insiders balk, the commissions must be flawed” overstates the point. Our point was that when even the insiders start to revolt, it’s hard to ignore what everyone else has known all along.
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Eric, we're fast approaching the end of my French vocabulary, and I really don't want to resort to using Google's translator to keep up with this conversation. But I think you're misapplying the Catch-22 standard to the French sentencing decision announced yesterday. It is true that the French court relied on some classified evidence to reach its verdict. But this was not la justice à huis clos, or justice behind closed doors. The French system, like ours, provides for the use of classified material. The material was fully disclosed to the parties involved—prosecutors, defense attorneys, and the finder of fact (in this case, French judges). The court subsequently reached a verdict, relying in part on that secret evidence.
Although the public may never see the actual classified evidence produced in the case, I think the public may trust the verdict because of its faith in the court as an institution, and the public faith in the court's mechanisms for managing classified information in the interests of justice. Compare and contrast this with the military commissions at Gitmo—where we have no faith in the institution, no faith in its procedural mechanisms, and very little confidence that it will handle classified material in a way that furthers justice.