The president’s Nov. 13 military order authorized Defense Secretary Donald Rumsfeld to establish military commissions to try terrorists for the crimes of September 11 and other planned or executed terrorist acts. But the order fell short of specifying how the commissions would exercise their powers. The Defense Department was ordered to produce a set of regulations defining procedures for the commissions. The time has come for those regulations to be made final and public.
The international debate over the commissions, and whether America’s treatment of al Qaeda and Taliban prisoners violates the Geneva Conventions, has drawn fuel from two sources. The declaration that the prisoners were “detainees,” rather than prisoners of war, gave life to speculation that they were being treated inhumanely, not in accordance with the standards set by the Geneva Conventions. Moreover, the president’s order allows convictions and sentencings on two-thirds votes, even for imposition of the death penalty, and permits both closed proceedings and introduction of evidence that would not be admissible in civilian courts. Conservatives joined liberals in questioning the fairness of such proceedings.
In the 90 days since the president’s order, gaggles of lawyers in the Defense and Justice departments have struggled to produce the regulations and have so far made nothing public. On Feb. 14, Sens. Arlen Specter of Pennsylvania and Richard Durbin of Illinois introduced legislation to settle the matter. Under their “Military Commissions Procedures Act” (S. 1937), the military commissions will be required to follow much of the civilian criminal law and procedures, with some notable exceptions. Sentences more severe than 10 years’ imprisonment would have to be on a three-quarters vote, and imposition of the death penalty only on a unanimous vote. It provides a right to counsel the same as soldiers have under the Uniform Code of Military Justice. Classified information would have to be provided at least in summary form to the defendant if it is to be used at trial. And the suspects are not granted Miranda rights requiring the presence of an attorney during questioning if the suspect demands one.
Finally, the bill would preclude the military commissions from trying cases of violation of civilian law. It restricts their jurisdiction to only violations of the laws of war. In this one case, the bill may go too far. One of the justifications of the president’s order is that, by taking these cases out of civilian courts, we protect the judges and jurors from acts of revenge by the terrorists’ cohorts. These cases should be disposed of all at once, not piecemeal. The bill, while imperfect, is better than nothing, which is what the lawyers have produced so far. Someone must define how the commissions will work both publicly and quickly. Congress will do it if the Defense Department doesn’t. That should be an incentive for the Justice and Defense departments’ gaggles of lawyers to act without further delay.