Administration seeks congressional approval for detention policy

The Bush administration has proposed draft legislation that largely recreates the deeply flawed military commissions that the Supreme Court struck down last month in Hamdan v. Rumsfeld. The administration's proposed legislation asks Congress to authorize its discredited policy of holding people indefinitely without charge. The draft legislation would authorize detaining people picked up anywhere in the world, including US citizens, and holding them indefinitely without charge if the administration unilaterally deems them to be "associated with" or "part of" al-Qaida or the Taliban. The draft legislation would also effectively rewrite the minimum, humane treatment standards of the 1949 Geneva Conventions, undercutting key protections for soldiers and civilians worldwide, including US citizens. As a means of prosecuting persons for violations of war crimes, the administration's proposed legislation disregards existing laws requiring military commissions to be based as closely as is practicable on the established rules and procedures laid out in the Uniform Code of Military Justice and the Manual for Courts Martial. The Judge Advocates General of each of the armed services, in hearings before the Senate Armed Services Committee two weeks ago, each endorsed the view that the court-martial system, with its deep reservoir of rules and precedents, should serve as the starting point for any military commissions authorized by Congress. The administration's proposal, in contrast, would create an entirely new court system–including a new appeals tribunal–which fails to guarantee even the barest minimum of due process. Those fair trial shortcuts would inevitably lead to a whole new round of litigation over the legitimacy of the new commissions. Of particular concern, the proposed commissions would allow the accused to be excluded from portions of his own trial; to be convicted based on evidence that he has never seen or had a chance to rebut; and to be convicted and executed based exclusively on second- or third-hand summaries of witness statements, without any chance to confront his accusers or fairly determine whether their statements were coerced.