The Detainees And The Law

US Attorney General Alberto Gonzales holds a news conference at the Department of Justice June 23, 2006 in Washington, DC.
Getty Images/Chip Somodevilla
By CBS News legal analyst Andrew Cohen

When you cut away the bluff and bluster from the Bush administration's current line about the military rules it wants to use to prosecute terror detainees, you realize that the White House and Congress (and the Supreme Court) are not as far away from consensus as the polarizers would have you believe.

A few tweaks here and there and we could finally see some progress for the men, who have been held without trial for about four years, and for our nation, which needs desperately to show the world that it can be tough and fair at the same time.

So, for example, if you ignore Attorney General Alberto Gonzales when he creepily calls "inherently vague" Geneva Convention definitions like "murder," "torture," "mutilation," and the "taking of hostages," you can focus upon the fact that the White House now is willing to back rules that require military prosecutors to share "classified information" that our government has gathered in support of a tribunal charge with a detainees' counsel.

Some members of Congress (and some important military lawyers) think that only by giving the detainee a glimpse at classified material can the process pass legal muster. Others believe that the "for your attorney's eyes only" solution to the use of classified information would put a detainee's attorney in an ethical or moral quandary.

But these objections aren't weighty enough to scuttle a deal and, besides, since when does anyone in Congress or the White House care about how defense attorneys feel?

There is plenty of classified information in regular trials that gets summarized (and thus sanitized) for defendants. It just happened, for example, in the Zacarias Moussaoui case in regular old federal district court. The "classified" clearance angle shouldn't stop this process in its tracks.

Nor should the issue of the admissibility of evidence obtained without the sorts of procedural safeguards to which we all are accustomed. The White House keeps braying that it is absurd to require our soldiers to read terror suspects a Miranda warning while the battle rages. But no one on the other side of the debate is even making that argument.

Nor is anyone contending that the same evidentiary rules that apply in our civilian courts ought to apply in cases where men have been apprehended, and evidence collected, on a battlefield or in other war-like conditions.

The administration is calling on Congress to authorize military commissions to allow the "introduction of all probative evidence, including hearsay evidence where such evidence is reliable."

Why? "Because many witnesses are likely to be foreign nationals who are not amenable to process, and other witnesses may be unavailable because of military necessity, incarceration, injury or death."

So long as military judges are given explicit instructions from Congress about how to evaluate the "reliability" of such evidence, so long as the rules are clear and firm, this shouldn't be a deal-breaker, either.