Andrew C. McCarthy at National Review Online has an excellent article on the subject today. Here's a snippet.
The universal, reciprocal chivalry that guided warriors, and nation-states, when young John McCain’s unflinching valor blazed its legend on the honor-roll of American heroes no longer obtains.
Now, the enemy is barbaric, and the only weapon is intelligence.
We confront a transnational terror network that projects force like a nation but slithers in the shadows — that gleefully dares a superpower’s shock-and-awe to create civilian charnel houses for a rabid global media. Bombing, after all, can get you only so far — especially if the enemies who most threaten you have embedded in London … or Manhattan. In this war, there is one overriding question: Where are they? Where are they so we can capture or kill them before they mass-murder us? Where are they so we can disrupt the next attack — the one with hi-tech weapons that could make 9/11 look like a training exercise?
Senator McCain and his entourage, Senators Lindsey Graham and John Warner, are making it ever more difficult to answer that question.....
Military commissions are Act II of this drama, a reprise of last year’s appearance by the GOP’s overwrought trio in the theater over “torture.” It was then that they saddled us with the ballyhooed “McCain Amendment.” This grandstanding legislation enabled them to rail about something that was already illegal, namely, torture, while paralyzing U.S. intelligence-gathering efforts by arming alien terrorists with Fifth Amendment rights … which, according to the Supreme Court’s 2000 Dickerson case, also include Miranda rights.
Back then, linear thinking not necessarily being a co-efficient of courage, McCain offered the dizzying rationale that forcible interrogation methods — including those which are “degrading” but fall well short of torture — must be barred because they never work … unless, of course, we were ever to capture a terrorist who had information about an imminent threat, in which case McCain figured his amendment would just be ignored and these methods that never work would be used to coerce information and thwart the attack. (I wrote about it here at the time.)
It should go without saying that no sentient official would put himself to the risks of McCain World. So down here on planet Earth, intelligence officers are now buying litigation insurance in anticipation of the war-crimes lawsuits to which these right-thinking senators have exposed them. And to steer clear of personal jeopardy, you can rest assured our agents will no longer be employing any tactic that might seem even arguably “degrading” (whatever that means). That is, they won’t be using methods that the president last week implied had wrung valuable information and saved lives. Who can blame them?....
On September 7, the New York Times reported that President Bush would “deny suspects and their lawyers the right to see classified evidence used against them.” That is about as disingenuous as it gets. In fact, under section 949(e) of the administration’s proposal, each accused terrorist will be assigned a military lawyer with sufficiently high security clearance to be given access to all of the trial evidence, no matter how sensitive and highly classified it may be. (“Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted[.]”)
Yes, a jihadist such as accused 9/11 mastermind Khalid Sheikh Mohammed may not get to see every piece of the government’s case. And yes, if, in addition to his assigned military lawyer, Mohammed decided to retain the services of one of the countless American barristers tripping over himself to volunteer his services to al Qaeda (assuming said barrister is not too busy suing his own government for intercepting the enemy’s wartime phone calls), that private attorney might also be denied access if his security clearance was not sufficiently high. But that would not mean Mohammed was shut out.
A military lawyer, whose sworn duty is to represent the accused faithfully, would still get to review the evidence. That lawyer, who would have had the opportunity to discuss the case thoroughly with Mohammed, would be in a fine position to interpose any arguments in Mohammed’s favor, and to strike or minimize the effect of any sensitive information from which Mohammed himself was precluded.
Is there any realistic chance that this arrangement would undermine fairness? How likely is it that Mohammed — if he had seen the actual evidence — would come up with a winning argument that somehow eluded the highly trained military lawyer fervently representing him.....
It is a venerable axiom that a defendant is entitled to a fair trial, not a perfect one, for there are no perfect trials. How much imperfection we should abide depends on our level of confidence in the outcome. If, for example, the defendant were to get personal access to 95 percent of the prosecution’s case but be denied a few details — maybe the name of a witness who is still undercover and providing life-saving intelligence, or maybe a technical explanation of a secret method that was used to intercept relevant conversations — it is virtually certain that such a trial would be judged fair and reliable.....
We are not talking here about denying information simply to deny information — to spite jihadists, however much doing so might seem poetic justice. We are talking instead about protecting vital information that saves lives. We are talking about constructing a system that encourages foreign intelligence services to continue cooperating with us without fear that the secrets they divulge will be surrendered to the enemy in legal proceedings. We are talking about fighting and winning a war in which intelligence trumps all other assets.
Please, by all means, read it all.
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