September 13, 2006 | National Review Online

Enact the President’s Code for Military Commissions

In the raging 2006 controversy over military commissions lies the pressing 2008 question: Can the nation afford a President John McCain?

The universal, reciprocal chivalry that guided warriors, and nation-states, when young John McCain's unflinching valor blazed its legend on the honor-roll of American heroes no longer obtains.

Now, the enemy is barbaric, and the only weapon is intelligence.

We confront a transnational terror network that projects force like a nation but slithers in the shadows — that gleefully dares a superpower's shock-and-awe to create civilian charnel houses for a rabid global media. Bombing, after all, can get you only so far — especially if the enemies who most threaten you have embedded in London … or Manhattan. In this war, there is one overriding question: Where are they? Where are they so we can capture or kill them before they mass-murder us? Where are they so we can disrupt the next attack — the one with hi-tech weapons that could make 9/11 look like a training exercise?

Senator McCain and his entourage, Senators Lindsey Graham and John Warner, are making it ever more difficult to answer that question. They, like the JAG corps they champion, lack the vision to peer beyond familiar standards designed for dated challenges. They are an anachronism. We can admire their moorings in an era of honor — of nation-states and humanity and civilized hostilities. But we can't afford it if they look at Zarqawi and see Hector.


Last week, reacting to the Supreme Court's decision in Hamdan v. Rumsfeld, the Bush administration asked Congress to enact new procedures for terrorist trials. The president's proposal would allow us to protect the nation's critical secrets from those pledged to kill us, yet conduct war-crimes trials that easily surpass the modicum of due process owed to terrorists whose atrocities mock the laws of war.

It was to be expected that Democrats would complain. They have not supported a sensible national-security initiative since President Clinton bombed Iraq and Kosovo without U.N. approval and had his Justice Department claim a right to conduct foreign-intelligence searches without court approval. It's an election year and, in the thrall of the hard Left, Democrats are playing to type.

No, the problem here is McCain & Co. Yet again, they appear poised to risk our security in the service of a purportedly pro-military standard that won't protect a single member of the armed forces.

The president's Code for Military Commissions would vest jihadists — unlawful enemy combatants who scoff at the dignity of true soldiers and intentionally target civilians — with a plethora of rights: fair notice of the charges, counsel paid for by the American taxpayers they are trying to murder, the presumption of innocence (notwithstanding that they were presumed guilty on the battlefield), lavish discovery of the prosecution's case, and more.

Nonetheless, the trial rules would allow evidence to which the accused has been denied personal access. Not denied all access, mind you; just personal access. (More on that in a moment.) This suggestion, naturally, has led to star-chamber claims by McCain, Graham, and Warner. (“It would be unacceptable, legally,” Graham blustered, “to give someone the death penalty in a trial where they never heard the evidence against them.”)


Military commissions are Act II of this drama, a reprise of last year's appearance by the GOP's overwrought trio in the theater over “torture.” It was then that they saddled us with the ballyhooed “McCain Amendment.” This grandstanding legislation enabled them to rail about something that was already illegal, namely, torture, while paralyzing U.S. intelligence-gathering efforts by arming alien terrorists with Fifth Amendment rights … which, according to the Supreme Court's 2000 Dickerson case, also include Miranda rights.

Back then, linear thinking not necessarily being a co-efficient of courage, McCain offered the dizzying rationale that forcible interrogation methods — including those which are “degrading” but fall well short of torture — must be barred because they never work … unless, of course, we were ever to capture a terrorist who had information about an imminent threat, in which case McCain figured his amendment would just be ignored and these methods that never work would be used to coerce information and thwart the attack. (I wrote about it here at the time.)

It should go without saying that no sentient official would put himself to the risks of McCain World. So down here on planet Earth, intelligence officers are now buying litigation insurance in anticipation of the war-crimes lawsuits to which these right-thinking senators have exposed them. And to steer clear of personal jeopardy, you can rest assured our agents will no longer be employing any tactic that might seem even arguably “degrading” (whatever that means). That is, they won't be using methods that the president last week implied had wrung valuable information and saved lives. Who can blame them?

So now, having “fixed” interrogations, the senators are turning their attention to trials. Their logic hasn't gotten any better. This time, they carp that withholding from jihadists evidence that might compromise intelligence methods and sources would be so fundamentally unfair as to reduce the trials to farce. Worse, according to the New York Times, they argue for a ludicrously high standard: Any trial for al Qaeda “must provide enough fairness guarantees that the nation would be comfortable having American troops tried under it.” (Emphasis added.)


Thus is the McCain Amendment theme reprised: The way we treat Islamic terrorists will somehow impact the way our own soldiers are treated when captured. It's hard to imagine a more preposterous premise on which to base policy.

Our enemies don't give a damn about the Geneva Conventions or, frankly, about the inspiring life story of Senator McCain. The life story that animates them is Mohammed's. Thus do they invoke, for example, the Battle of Qurazya, in which the prophet is said to have ordered hundreds of captured prisoners decapitated and interred in mass graves (while women and children were condemned to slavery). Thus, too, do they cite scriptures which instruct, for example, that “when ye meet the Unbelievers in fight, smite at their necks” (Sura 47:4); that they must “slay [their enemies] wherever ye catch them” (Sura 2:191); and that “[t]he punishment of those who wage war against Allah and His Messenger … is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides …” (Sura 5:33).

Let's not mince words here: Our soldiers, if captured by Islamic terrorists, will be tortured and killed. That's what Islamic terrorists do. That's why awed admiration is the only proper response to the bravery of our men and women in uniform. They fight for us despite knowing, as we should all by now know, that nothing we do affects the jihadists' behavior.

On the other hand, if we were to fight another conventional war against the honorable combatants of a nation-state, that country's forces — like our own — would be solemnly bound to (as well as self-interested in) compliance with their Geneva Convention obligations regarding prisoners of war. Again, how we deal with al Qaeda now is irrelevant to the treatment our forces will receive in any future conflict.

So, no, we don't owe jihadists the same trial rights we owe any honorable combatants, much less our own troops. The very notion is an insult to those putting their lives on the line in our defense. That aside, though, the incentives these senators would create are perverse. It is an elementary rule of human nature that when behavior is rewarded, it begets more of the same. Rewarding terrorists with rights to which they have no legal entitlement can only encourage their methods — a cost McCain, Graham, and Warner would apparently have us bear despite the absence of any discernible benefit.


But let's move away from the senators' anomalous policy and examine the specific legal considerations at stake. And here, we are once again bewildered by the Republican-controlled Senate. When the subject involves areas where the federal judiciary has no business — like determining which enemy operatives should be monitored in wartime or giving advisory opinions about national-security programs — the GOP's Solomons can't impose the judges on us fast enough. Yet, when it now comes to the legitimate business of judging, suddenly the judges are not to be trusted.

Similarly, with all the posturing about regard for our troops being paramount, when it now comes to expecting some members of our military — namely, the JAG corps — to perform their duty ably, they suddenly can't be trusted either.

On September 7, the New York Times reported that President Bush would “deny suspects and their lawyers the right to see classified evidence used against them.” That is about as disingenuous as it gets. In fact, under section 949(e) of the administration's proposal, each accused terrorist will be assigned a military lawyer with sufficiently high security clearance to be given access to all of the trial evidence, no matter how sensitive and highly classified it may be. (“Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted[.]”)

Yes, a jihadist such as accused 9/11 mastermind Khalid Sheikh Mohammed may not get to see every piece of the government's case. And yes, if, in addition to his assigned military lawyer, Mohammed decided to retain the services of one of the countless American barristers tripping over himself to volunteer his services to al Qaeda (assuming said barrister is not too busy suing his own government for intercepting the enemy's wartime phone calls), that private attorney might also be denied access if his security clearance was not sufficiently high. But that would not mean Mohammed was shut out.

A military lawyer, whose sworn duty is to represent the accused faithfully, would still get to review the evidence. That lawyer, who would have had the opportunity to discuss the case thoroughly with Mohammed, would be in a fine position to interpose any arguments in Mohammed's favor, and to strike or minimize the effect of any sensitive information from which Mohammed himself was precluded.

Is there any realistic chance that this arrangement would undermine fairness? How likely is it that Mohammed — if he had seen the actual evidence — would come up with a winning argument that somehow eluded the highly trained military lawyer fervently representing him. (And here it is worth bearing in mind that military lawyers have indisputably represented their terrorist clients with remarkable zeal — bogging down commissions for years and persuading the federal courts to embrace many of the enemy's central contentions.)


Moreover, as someone like Senator Graham, an accomplished trial lawyer and military judge, should know only too well, absent a concrete factual context, no one can tell whether the withholding of particular evidence from a defendant would actually render a trial fundamentally infirm.

It is a venerable axiom that a defendant is entitled to a fair trial, not a perfect one, for there are no perfect trials. How much imperfection we should abide depends on our level of confidence in the outcome. If, for example, the defendant were to get personal access to 95 percent of the prosecution's case but be denied a few details — maybe the name of a witness who is still undercover and providing life-saving intelligence, or maybe a technical explanation of a secret method that was used to intercept relevant conversations — it is virtually certain that such a trial would be judged fair and reliable.

To the contrary, if the defendant were denied presence for substantial portions of the proof, especially the evidence on which guilt or innocence hinged, such a trial would probably be deemed unfair — although, even then, if the case involved multiple charges (as most of these cases would), it would have to be assessed whether convictions on all of the counts were tainted, or just some, or perhaps only one. That is, even then, there's a good chance the whole trial would not be deemed an injustice.

A trial is often likened to a jigsaw puzzle. If you were assembling an Eiffel Tower puzzle, and it turned out that the manufacturer had failed to include one or two pieces out of a hundred, you would still be quite confident that the remainder showed the Eiffel Tower. If, on the other hand, half the pieces were missing, it might be a very different story.

So what is our safeguard? How do we know the defendant got enough information to satisfy due process? Judges, that's how.

The military commissions would be presided over by military judges. Beyond that, the president's proposed legislation contemplates appeals to both a military court of review and a federal appellate court in the civilian criminal-justice system. Ultimately, there would be a chance at review in the Supreme Court. Potentially, that is four bites at the apple.

Since 9/11, countless senators have sung paeans to the glories of judicial review. Well, fine then. If a trial was unfair, why should we not assume that somewhere in the course of review, re-review, and perhaps re-re-review, highly professional judges will figure that out. And figure it out not on an anticipatory hunch — which is what McCain, Graham, and Warner are offering — but based on an evaluation of a complete, concrete record?

This, after all, is what we have judges for. And it is precisely what we trust them to do everyday. They do it with unparalleled skill, bolstered by a system of layered review — just like what the president has suggested — that is adroitly designed to discourage and ferret out error.

We are not talking here about denying information simply to deny information — to spite jihadists, however much doing so might seem poetic justice. We are talking instead about protecting vital information that saves lives. We are talking about constructing a system that encourages foreign intelligence services to continue cooperating with us without fear that the secrets they divulge will be surrendered to the enemy in legal proceedings. We are talking about fighting and winning a war in which intelligence trumps all other assets.

Though 2008 remains in the offing, we already know the war will still be with us, intelligence will still be vital, and we will still need a president who can uphold our values without empowering the enemy. The next few weeks will tell us a lot about whether John McCain could be such a president.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.


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