The Detainees And The Law

By CBS News legal analyst Andrew Cohen

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.

That is, unless the White House and its chief law enforcement officer continue to weasel their way around the issue of the means by which our military personnel extract "evidence" from terror suspects or witnesses.

One of the most remarkable exchanges this past week during Gonzales' testimony before the Senate Armed Services Committee came when Sen. John McCain (R-Ariz.), who knows a little something about inhumane treatment by captors, asked the attorney general if statements "obtained through illegal, inhumane treatment should be admissible" in these military commissions.

The correct answer, of course, is "no." But that's not what our nation's top lawyer said.

After a pregnant pause, which at least one observer found to be "embarrassing," Gonzales said: "The concern that I would have about such a prohibition is, what does it mean (and) how you defined it. I think if we could all reach agreement about the definition of cruel, inhumane and degrading treatment, then perhaps I could give you an answer … Depending on your definition of something as degrading, such as insults, I would say that information should still come in."

Sorry. Wrong answer.

Actually, it's a pathetic and shameful answer. Congress should close this torture loophole the administration seems obsessed with keeping open. It should prohibit the use of any evidence that is acquired by coercive means.

Not only is this fair, it also is likely to generate more accurate information and evidence since study after study (such as they are) indicate that coercive interrogation tactics do not guarantee the collection of good evidence. Put another way, if we have to torture a suspect to make a case against him, perhaps it's not a case worth making.

For a deal to get done, Congress also should ignore completely the White House's new effort to actually broaden the scope of the military commissions to include defendants who are not members of Al Qaeda or the Taliban and who are not alleged to have been directly involved in terrorism.

There will be time later to expand the scope of these courts if they work well in processing out of Guantanamo Bay, Cuba the hundreds of detainees currently held there (the vast majority of whom are alleged Taliban fighters who never killed anyone or planned any terror attacks). As my mother used to say, finish what's on your plate before you ask for more food.

After four long years, Congress should say enough is enough — enough of White House pronouncements about the need for Kafkaesque trials for the detainees, enough of the administration's "Chicken Little" scenarios about what will happen if the men are given decent due process rights, enough of the government's side-stepping on the issue of torture and other coercive means of interrogation.

The sides aren't that far apart. A set of decent and fair (and, most important, constitutional) rules are within reach. Our political leaders owe it to the detainees, and to the rest of us, to finally get this thing moving.
By Andrew Cohen