Say Anything Blog

The Wall Street Journal:

Last month's foiled plot to blow up 10 airliners over the Atlantic showed the importance of intelligence and surveillance to the anti-terror fight. By extension, it also showed the need for a system to prosecute captured terrorists that doesn't require compromising intelligence sources and methods. But as Congress and the President return to work on legislation authorizing military tribunals, the usual suspects at outfits such as Human Rights Watch are saying such tribunals would create "a travesty of a fair trial." They claim anything short of the guarantees American soldiers get before courts martial will fall afoul of the Constitution and international law.

There is certainly nothing in the Supreme Court's June 29 ruling in Hamdan v. Rumsfeld to support such a contention. Although the Court put a temporary halt to the Bush Administration's plans to move forward with military tribunals, it did not object to the tribunals themselves. It said merely that the Administration erred in supposing it already had all the Congressional authorization it needed to create them. "Nothing prevents the President from returning to Congress to seek the authority he believes necessary," wrote Justice Stephen Breyer.

What's more, the allegedly problematic features of the proposed military tribunals -- such as the permissibility of "hearsay" evidence -- are little different from some of the compromises that have been made to facilitate the work of such institutions as the International Criminal Tribunal for Yugoslavia and the permanent International Criminal Court. Those two institutions enjoy the enthusiastic support of Human Rights Watch and other critics of the Bush Administration's tribunals. . . .

It strikes us as a no-brainer that the national security stakes involved in trying suspected terrorists will require some deviations from standard civilian and military rules of evidence. The Bush Administration's tribunal proposal is a reasonable compromise. It's time the government be allowed to get on with the business of processing detainees in the war on terror.

Read the whole thing.

Personally, I blame this lack of progress in hammering out a tribunals process on Congress. I'd go so far as to say that the reason why the President proceeded with tribunals in the Hamden case is because Congress failed to address the issue themselves.