resist, as they stated over and over, giving Bush the opportunity to narrow the definition of torture and withhold evidence. Many have said that court martials were a model, and legal experts have weighed in about narrowing the language.
Critics warn that the administration is opening a Pandora's box.
"This is extremely dangerous terrain the president has walked upon now," says David Scheffer, director of the Center for International Human Rights at Northwestern University School of Law and former US ambassador at large for war crimes issues during the Clinton administration.
Professor Scheffer says Common Article 3 was carefully drafted to deter broad categories of potential human rights abuses. "If we take this step to narrowly define Common Article 3 crimes, it will be open season for other governments to do exactly the same thing," he says. And that, Scheffer adds, would put US troops at substantial risk whenever they serve overseas.
"Once you narrowly define what the general prohibitions in Common Article 3 cover, whatever you do not prohibit in your detailed list of prohibited activity will be assumed to be appropriate and legal," he says. "It was never the intention of the drafters of the Geneva Conventions and of Common Article 3 to be so specific in defining these crimes. That would create an enormous opportunity to gut the convention itself."
http://www.csmonitor.com/2006/0921/p03s03-uspo.htmlLikewise, Congress must not simply act to authorize the military commissions the administration has put in place. Such a move would be a disaster. The Supreme Court has already found that system to be lacking in significant ways. The justices of the Supreme Court gave Congress and the White House a road map to follow. Failure to enact sound rules will only lead to another adverse ruling from the highest court in the land.
However, that is not to say the court-martial system as outlined in the UCMJ and MCM could not or should not be modified. Indeed, some basic steps are necessary to make the system applicable in the terrorism context. Fundamentally, Congress would have to grant itself jurisdiction in order to create a legally sound system for military commissions.
The War on Terror creates a unique environment where the Military Rules of Evidence may need to be adapted in some narrow and well-defined ways — not with the sea changes the administration is proposing.
Clearly, evidence resulting from any form of coercion should not be admissible under any circumstances. More broadly, Congress must not alter with our obligation of humane treatment.
http://www.unionleader.com/article.aspx?headline=John+D.+Hutson%3A+Congress+must+right+a+wrong+on+treatment+of+detainees&articleId=cc20d971-27e0-4862-978d-10aa0218a83fAlso sounding alarms on Bush's legislation Thursday were the Pentagon's top uniformed lawyers. Testifying before a House panel, the service's judge advocate generals said the plan could violate treaty obligations and make U.S. troops vulnerable.
``While we seek that balance'' of fairness and security, ``we also must remember the concept of reciprocity,'' said Brig. Gen. James Walker, staff judge advocate for the Marine Corps. ``What we do and how we treat these individuals can, in the future, have a direct impact on our service men and women overseas. ``
The president's legislation would authorize the defense secretary to convene military tribunals to prosecute terrorism suspects and omit rights common in military and civil courts, such as the defendant's right to access all evidence and a ban on coerced testimony. Bush has said the plan is both fair and tough enough to ensure dangerous terrorists can be brought to justice.
Snip...
But the service's top lawyers reiterated their position that other alternatives must be explored - or the case dropped.
``I believe the accused should see that evidence,'' said Maj. Gen. Scott Black, the Army's judge advocate general.
http://www.guardian.co.uk/worldlatest/story/0,,-6065810,00.html
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