When the Obama administration's detention policy task force released its preliminary findings last week, civil-liberties and human-rights groups were underwhelmed. The task force they said, did little to clarify under what circumstances suspected terrorists would be tried by military commission instead of in federal court.
"I would push for a very narrow standard for military commissions -- only for battlefield crimes that are not appropriate for trial in civilian courts," says Ken Gude, a human-rights expert at the Center for American Progress. "That would eliminate any sense that military commissions are chosen because it's easier to secure a conviction than federal court."
The task force declined to do that. Instead, it merely reiterated the administration line that suspected terrorists would be prosecuted in federal court "where feasible" -- leaving open, human-rights advocates say, the possibility that the military commissions will be used as a venue for trying suspected terrorists on evidence gained through unsavory means.
"What it means to us is that evidence that would probably never be accepted in U.S. federal courts, that was not given voluntarily, would be permitted," says Stacy Sullivan, a counterterrorism expert with Human Rights Watch.
Civil-liberties and human-rights groups want to see suspected terrorists tried in federal court on criminal charges. They don't want to see them tried by military commission or in any venue where the evidence against them could be the product of torture or coercion. But in the last few weeks, these groups have found themselves fighting a two-front battle: continuing to call for the end of trial by military commissions, while at the same time trying to convince the Senate to adopt changes to the commissions ensuring due process and oversight.
"We would like to see the military commission provisions taken out entirely," says Chris Anders, senior legislative counsel for the American Civil Liberties Union. "But if they're going to stay in, they certainly should be fixed to make them constitutional." The administration wants several changes to the National Defense Authorization Act , which has already passed both houses of Congress and is now in conference. The administration wants a sunset provision that would force Congress to reconsider in several years whether the commissions are still needed, it wants certain offenses that are not internationally recognized war crimes removed from the list of potential charges in the bill, and it also wants a "voluntariness standard" that would prohibit the use of coerced evidence -- not just evidence gained through cruel, inhuman, or degrading treatment.
When Vice Adm. Bruce MacDonald spoke to the Senate Armed Services Committee in early July, he gave the example of a soldier kicking a civilian's door in and demanding a statement as the kind of evidence that is "inherently coercive." The administration is bound by a May 2009 opinion from the Office of Legal Counsel, first reported on by The Wall Street Journal in June that says without a voluntariness standard, the military commissions would be unconstitutional.
Yet the Senate has resisted the changes on both sides of the aisle. During a Senate Armed Services Committee hearing on July 7, Sen. John McCain sounded shocked by the idea that terrorist suspects would be granted due-process rights.
"Are you saying that these people who are in Guantánamo, who were part of 9-11 or have committed acts of war against the United States are entitled to constitutional rights?" McCain asked. Assistant Attorney General David Kris said it was the administration's view that the due process clause of the Constitution "imposes some requirements on the conduct and rules governing these commissions" -- to do otherwise would leave the commissions open to constitutional challenge.
"It's not just that the administration's concerns haven't been met; under administration policy, what the Senate passed last week is unconstitutional," Anders explains. "So unless it gets fixed in conference, the president is going to have to sign something that his administration has concluded would be unconstitutional, or he's going to have to veto it." Despite human-rights advocates' general opposition to the military commissions, they've been put in the difficult position of pushing Congress to add the recommended safeguards in order to secure some measure of due process for detainees.
"We oppose the military commissions outright and think no matter of tinkering can make them fair," says the Human Rights Watch's Sullivan. "What's the principled stand to take? Say we oppose and not discuss, or do everything we can to make it known how wrong and unfair they are, while at the same time, trying to get safeguards [for detainees]?"
Senate conservatives have expressed concerns about the use of statements from suspected terrorists -- and the possibility that a voluntariness standard would force American soldiers to walk around reading combat detainees their "Miranda rights," despite repeated assurances from the testimony of administration officials to the contrary. But Senate Democrats have also been reluctant to support the administration -- and Senate staffers suggested that some Democratic Senators share Republicans' concern that a voluntariness clause would impose unrealistic standards on American troops on the battlefield.
Lt. Col. Darrel Vandeveld, a former military-commissions prosecutor who believes the commissions themselves are irreparable, says that the focus on detainee statements misses the point -- that the statements given by detainees are often the least useful in convicting them. While serving on the Joint Detainee Review Committee in Iraq, which determined whether detainees there -- most of whom he says were captured "on the battlefield"-- should remain incarcerated while civilian Iraqi authorities constructed cases against them.
"The evidence against them consisted of detailed statements by the soldiers involved, extensive photographs of weapons caches, [improvised explosive devices]-making material, instructional manuals, and so on," Vandeveld says. "The Iraqi prisoners rarely talked, and when they did, they issued almost rote denials, even when the evidence against them was irrefutable."
Vandeveld adds, "The whole notion, speaking as someone who has actually been on many battlefields, that commissions require relaxed evidence standards because of the nature of warfare -- while it has a certain surface plausibility -- is false."
When he testified before the Senate Judiciary Subcommittee on Terrorism and Homeland Security last week, Assistant Attorney General Kris also asked that the Senate remove provisions from the bill that allow material support for terrorism charges to be tried by military commission, because "there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law-of-war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system's legitimacy."
But even with the proposed changes, there would still be problems with the bill. While asking that the material support for terrorism charges be removed from the bill, the administration has accepted conspiracy to commit terrorism charges as part of the list of offenses suspected terrorists can be charged with under the military commissions. The problem is that neither are internationally recognized war crimes, Sullivan says, which is part of the reason the military-commissions process is so suspect.
"If the president wants to make this clear delineation between those who are accused of terrorism and those who are accused of war crimes," Sullivan says, "then what they really need to do is charge those who are accused of war crimes by court martial [which, unlike the military commissions, have evidentiary standards similar to civilian courts], and they should adhere to the internationally accepted definitions of what war crimes are."
In the meantime, groups like the ACLU and Human Rights Watch are stuck fighting for a constitutional version of a policy they don't even want -- even though poorly constructed military commissions would be ripe for constitutional challenge.
"Sometimes there are people who think it's a good strategy to let something pass Congress that's unconstitutional so they can challenge it later," says the ACLU's Anders. "We don't think Congress should pass anything unconstitutional ever."