Senate Hearings on Terror Courts

Yesterday top military lawyers testified before the Senate Judiciary Committee, speaking largely in disagreement with the Administration's draft plan for creating military commissions to try terror suspects. The main points of contention seemed to be rules of evidence - what defendants would be allowed to see, the admissability of evidence obtained through "coercion" and the question of hearsay. The lawyers also said they had concerns about how the appeals process would work.

Later in the day, deputy SecDef Gordon England and AG Gonzales went before the Senate Armed Forces Committee, where they faced tough questions from Senators Warner, McCain, Graham, and Levin. This hearing, which I watched, was notable for an odd exchange between McCain and Gonzales. McCain, taking up the question of coerced testimony, asked whether evidence obtained through "illegal and inhumane treatment" should be allowed into evidence.

Gonzales sat at his table for what seemed like an eternity (the Times says it was "almost a minute"), several times starting to speak and then stopping. Finally he said "The concern that I would have about such a prohibition is, what does it mean? How do you define it? I think if we could all reach agreement about the definition of cruel and inhumane and degrading treatment, then perhaps I could give you an answer." McCain later commented that to use such evidence would be a "radical departure" from American policy. It's clear that the Administration has not taken the passage of last year's McCain amendment to heart at all, since those treatments are precisely what's prohibited under that legislation.

Graham, Warner, McCain, and Levin all made clear their view that the UCMJ ought to be the basis for the new system; Gonzales said this would be the case, but it was clear from his later statements that there are significant departures in the Administration's plan from the way the UCMJ functions. It will be interesting to see how these questions shake out as the legislation is drafted and where things go from here.

On another note in yesterday afternoon's hearing, Senator Clinton used her time to berate Secretary Rumsfeld for not appearing in public before the committee. Late last evening, the Secretary reversed position and said that he will in fact appear before the Armed Services Committee in a hearing this morning at 9:30 a.m. before meeting with all senators behind closed doors later in the day. I'm sure this morning's hearing will be very interesting indeed, and I'll try to catch at least some of it (it'll be carried on C-SPAN).