John Yoo, a former Justice Department lawyer who helped draft the earlier plan, said Bush administration officials essentially "took DOD regulations" for the trials "and turned them into a statute for Congress to pass." He said the drafters were obviously "trying to return the law to where it was before Hamdan " by writing language into the draft that challenges key aspects of the court's decision.
"Basically, this is trying to overrule the Hamdan case," said Neal K. Katyal, a Georgetown University law professor who was Hamdan's lead attorney.
As for the plan itself:
The plan calls for commissions of five military officers appointed by the defense secretary to try defendants for any of 25 listed crimes. It gives the secretary the unilateral right to "specify other violations of the laws of war that may be tried by military commission." The secretary would be empowered to prescribe detailed procedures for carrying out the trials, including "modes of proof" and the use of hearsay evidence.
Some of the reasons it's unfair:
Unlike the international war crimes tribunals for Rwanda and the former Yugoslavia, the commissions could rely on hearsay as the basis for a conviction. Unlike routine military courts-martial, in which prosecutors must overcome several hurdles to use such evidence, the draft legislation would put the burden on the defense team to block its use
As to the death penalty provisions:
Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.....Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.
All Bush has done is take his former tribunal plan and converted into a statute to be passed by Congress, as an end run around the Hamden decision. He's also expanded the class of detainees subject to the plan (from al-Qaeda to other groups) and increased the number of crimes that can be prosecuted under it.
bq. To secure a death penalty under the draft legislation, at least five jurors must agree, two fewer than under the administration's earlier plan. Courts-martial and federal civilian trials require that 12 jurors agree.
As Bruce Fein says:
"the theme of the government seems to be 'They are guilty anyway, and therefore due process can be slighted.' " With these procedures, Fein said, "there is a real danger of getting a wrong verdict" that would let a lower-echelon detainee "rot for 30 years" at Guantanamo Bay because of evidence contrived by personal enemies.
