First sentence, THEN trial

Mad props to Tony Collett, who seems to be the first blogger (at least that I've seen) to mention this rather terrifying story in the Washington Post.

Seems the Bushies would like to try... well, any of us... in front of military tribunals, because, you know, the American criminal justice system is just too tediously cumbersome for them, with all those rules of evidence and being allowed to confront your accusers and all that nonsense.

As the Post puts it:

"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...

...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.

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.

The admission of hearsay is a serious problem, said Tom Malinowski, director of the Washington office of Human Rights Watch, because defendants might not know if it was gained through torture and would have difficulty challenging it on that basis. Nothing in the draft law prohibits using evidence obtained through cruel, inhumane and degrading treatment that falls short of torture, Malinowski said.

The U.S. official countered that a military judge "would look hard" at the origins of such evidence and that defendants would have to count on "the trustworthiness of the system."

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."

The last point is a very important one; not only do the Cheneyites want to give us all court martials if we get out of line, they are even trying to change the already existent rules on court martials. Military justice is already a very different animal than what the rest of us get, but apparently even these rules aren't lax enough for our current owners. They want to get ALL that onerous 'rights' stuff out of the way, and essentially reduce the trial system to a process whereby you don't even have to be present to be pronounced guilty, nor does any actual evidence have to be made known to you, or to your court appointed lawyer.

If this is passed, the administration will be able to arrest any of us, hold us indefinitely, and if they are somehow moved to try us, they can find us guilty, basically, because of secret evidence we aren't allowed to know, which could be as vague as "somebody told us something about you".

Of course, it's important to note at this point that only the last part of that sentence would be anything new. Ever since Bush asserted the enemy combatant principle to hold Jose Padilla indefinitely without trying him, or even allowing him contact with a lawyer, and we let him get away with it, he's been able to do the first part. What this will mean is that, essentially, his administration will no longer need to be afraid of putting anyone on trial, since under these new rules, they'll be able to convict anyone they want. They won't have to worry about being reversed by a higher court, either, because there won't be any grounds for reversal.

We can hope that, as Bush's political star continues to wane, our elected representatives in Congress, including those of Bush's own party, will continue to abandon him, which in this case would mean, firmly rebuffing this proposal.

But you never know. Eventually, the spineless lickspittles that seems to be the majority of officials our system elects has to wise up and understand something I myself have long since accepted -- this 'administration' is here to stay. Or at least, that's the plan... and I can't think of anything short of rioting in the street that's going to stop it.

Once our 'elected representatives' finally internalize the reality that Bush/Cheney/et al are in the driver's seat and not planning on getting out, ever... well, I suspect it will become a great deal easier for the 'administration' to get any law it wants through a much more compliant Congress.

In fact, our only hope for the future may be if, once Congress realizes this, they decide to dig in and carve out their own turf in the new dictatorship. But I've been waiting for Congress to start pushing back against the executive branch for years now. I can't imagine that the sudden realization that Bush-Cheney really DO view themselves as emperors is going to galvanize an effective resistance. More likely, it will just make Congress go even more belly up.

Unlike Tony, though, I really don't expect the administration to start arresting and trying bloggers any time soon. Why? We're powerless. These new rules will be implemented to neutralize real threats... and lord knows, none of us out here are that.