Gitmo Trials: Let’s Help Senator John Warner
John Warner is a grownup Republican who I suspects wants to do the right thing in the aftermath of Hamdan. Kate Zernike reports:
A leading Senate Republican said Friday that he was not sure that Congress should pass legislation to create new military tribunals for terror suspects, a stance that raised doubts about prospects for a White House plan to establish an alternative to the commissions struck down this week by the Supreme Court. The senator, John W. Warner of Virginia, the chairman of the Armed Services Committee, said he had not yet decided what course Congress should take. But Mr. Warner, who will preside over hearings on the issue in July, said he was concerned that new tribunals, even if authorized by Congress, might not withstand judicial scrutiny. “We’re going to do this extremely carefully and accurately, or we’re going to end up with a solution that once again ends up being the subject of litigation, and possibly being overturned,” Mr. Warner said in an interview in his office.
Jack Balkin reviews the Hamdan decision and gives us a clue as to the way forward:
the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by “regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples.” As Justice Kennedy’s concurrence points out, the latter requirement dovetails to some degree with the UCMJ’s requirement of uniformity between what we do for our own soldiers and what we do for people like Hamdan. The courts have to be regularly constituted, i.e., they can’t be special purpose fly-by-night courts with their own made up procedures, and the procedures have to comport with basic guarantees of fairness, as, one presumes, our court martial system does.
Balkin also gives us a clue what Karl Rove is likely hoping for:
If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States.
I realize that the GOP leadership in the House and in the Senate likely wants to follow the Rovian partisan path preferring to abuse this issue than to offer something constructive. But this bit of snark from Kevin Drum gave me an idea:
And Democrats would be right to support tough guidelines, which could probably sail through Congress with bipartisan support to spare if that’s what the Republican leadership wants. They don’t, of course. They want a campaign issue, not a solution, and most likely won’t rest until they manage to find legislative wording so punitive and extreme that even Hillary Clinton can’t support it. It may not be good for the country, but it makes for good C-SPAN.
Kevin was noting the partisan tendencies of the GOP leadership (not endorsing it as some on the right seem to be doing) and he seems to have rather low expectations for Senator Clinton. But here is how she can exceed expectations. First, invite John Warner to lunch and ask him to bring along Lindsey Graham and John McCain. Before my liberal friends scream that this would be a lunch similar to most Meet the Press panels – that is tilted toward the right – hear me out. Senators Graham and McCain have been leaders on this issue. Secondly, have this foursome meet with Senators Feingold and Leahy – both able liberals. A meeting of these six Senators could craft a very good piece of legislation.
I realize the demagogues in the House GOP leadership will be quickly crafting the type of bill that Kevin fears. Which is all the more reason why the Senate needs to show real leadership. I also realize that Bill Frist is likely working with Karl Rove to make this issue as partisan as possible. But if the Democrats work with Senators Graham, McCain, and Warner – I bet they can bring along a few other Republican Senators who’d love to buck Frist’s misguided leadership and put principle above partisanship.