Spencer Ackerman, who is currently following the Senate hearings on military commissions for suspected terrorists, reports that the adminstration has yet to come up with a clear legal standard for distinguishing between those detainees who would be tried in federal court and those who would be tried by military commission:
Defense Department General Counsel Jeh Johnson’s answer was, preliminarily, a shrug. “Where feasible we would seek to prosecute detainees in Article 3 [federal] courts,” he said. Feasible meaning what, exactly? It’s difficult to say, Johnson continues, saying that there are many in the detainee cohort that could be said to have violated both federal criminal law and the laws of war. Johnson said he and David Kris are working on creating some basis for distinction.
Part of the reason civil libertarians are fighting the military commissions is because the distinction seems so arbitrary. They surmise that the reasons for who gets tried by MC and who gets their day in federal court has less to do with the nature of the offense, and far more to do with the strength of the government's case against a particular detainee.
On a related note, the Obama administration's military commissions will have to meet certain standards of due process in order to be legal. This apparently makes John McCain very angry.
-- A. Serwer
