Michael Isikoff reports that retired Vice Adm. Bruce MacDonald has been selected by the Obama administration to be the convening authority for the new military commissions. Spencer Ackerman points out that MacDonald disagreed with Pentagon General Counsel Jeh Johnson and Justice Department National Security Division head David Kris about the admissibility standard for evidence in the military commissions, specifically the use of "coerced" evidence.
But Vice Adm. Bruce MacDonald, the Navy's judge advocate general, told the panel that battlefield captures are “inherently coercive,” as soldiers do not read Miranda rights to their detainees, and so predicating admissibility on voluntariness creates too restrictive a standard. “This is an area where I do disagree with the administration and I think the [Senate Armed Services] committee got it right,” MacDonald said.
A little bit of clarification on this. An unreleased memo from the Office of Legal Counsel said that leaving out a voluntariness standard for statements from the accused would make the commissions vulnerable to legal challenges from civil liberties groups based on the Fifth Amendment, which protects against self-incrimination. During the Bush administration, civil-liberties groups rendered the military commissions ineffective by challenging their low due-process standards -- and winning case after case.
The commissions do allow coerced statements from third parties, which would dodge a Fifth Amendment-based challenge since those statements can't be described as self-incrimination. The military commissions standard for statements made by the accused "approximates the civilian court system for the defendant," according to Human Rights Expert Ken Gude at the Center for American Progress.
Col. Morris Davis, the former head prosecutor for the military commissions (who has since become a vocal critic of them), said that MacDonald was "a great choice" for convening authority. He added that during the Bush administration there was “a great deal of frustration amongst [JAG lawyers] that the political appointees tended to think they knew better about how to conduct a military tribunal than the military," pointing out that the Bush-era convening authority, Susan Crawford, had not served in the military.
But Davis also made clear that a legal challenge was still likely. He was on a panel at NYU with Anthony Romero, the head of the ACLU, on Monday, where he said Romero made the ACLU's intentions clear.
"The ACLU will make this as messy and difficult as humanly possible,” Davis said. "Their objective on the military commissions is to blow up the process.”
Romero put the ACLU's strategy differently when I spoke to him. "The military commissions are likely to implode on their own, but we will do our best to demonstrate the flaws in this process," Romero said. Even an ultimately unsuccessful challenge, as I've written before, could hold the commissions up indefinitely, just like during the previous administration.
-- A. Serwer
