Things will get interesting because the left believes that the military commission does not make a fair trial available.
The Eric Holder approach was to get defendants to America ( via habeous corpus)so they could receive a “fair “ trial. This was done in order to exclude from evidence Khalid Shaikh Mohammad’s confessions allegedly extracted under water boarding.
However this is a military commission , not bound by the rules of evidence in the Federal Code, and his cponfessions should be eneterd into evidence. Military commissions sentenced defendants to death for war crimes in Japan and Germany after WWII. No “fair trial” requirement was necessary then and should not be now.These are enemy combatants, not invested with the rights and privileges of a Domestic US defendant, nor of the Geneva Convention because they act for no nation. They are regarded like pirates, an accused with persona non grata status.
Here’s to him swinging from a yard arm at GITMO, live via FOX News, for the entire Arab World to see.
Actually, under the Military Commissions Act that authorizes the trials at Gitmo, statements obtained through the use of “torture” are not admissible at the trial. So if the commission has ruled waterboarding to be torture, the exclusion of those statements is in accordance with the law of the proceedings.
While not all of the Federal Rules of Evidence are applicable, most of them are. The biggest deviation is in the use of hearsay. The Court can consider hearsay if it deems the statement “reliable.” Other non-FRE differences are: 1) No exclusionary rule for evidence obtained without a warrant, 2) Closed proceedings for introduction of classified evidence, 3) No right to speedy trial, and 4) Guilty verdicts need only be by 8 of 12 members of the Commission, except in a death penalty case, where the verdict must be unanimous.
Personally, I thought Johnson v. Eisentrager controlled the law of these military commissions for non-state actors committing acts outside the United States. However, the Bush Administration was obstinate in denying even the facade of due process to the Gitmo detainees. The prior cases, In re Quirin, Matter of Yamashita, and Johnson v. Eisentrager, all had the trappings of due process. The military commissions were created by acts of Congress, not executive fiat. The accused had public proceedings, notice of the charges, defense counsel, and speedy trials. Some would say too speedy. But they had trials, were found guilty and most of the defendants very quickly executed by hanging. That’s the way it should have gone here.
However, with the Gitmo prisoners, initially none of those rights were afforded and it left a bad taste in the mouths of five U.S. Supreme Court justices. If Congress had passed the MCA or something like it from the get-go, none of this crap would be an issue and KSM would already be taking the dirt nap he deserves.
Whoever advised Bush on the “legalities” of the Gitmo detainees gave him some bad legal and PR advice.
It was also done to have them held at a prison in Illinois while being represented by Holders former firm. I forgot the connection to the prison. But the whole reason behind the push to allow these animals access to constitutional rights so holder et al could capitalize..