Rumsfeld Rules


The Bush administration is not only asking Congress to approve essentially the same military tribunal rules the Supreme Court rejected in Hamdan v. Rumsfeld; it also wants the tribunals to have broader jurisdiction. According to The Washington Post, the administration's proposed legislation says military commissions can try people for any of 25 listed crimes, plus whatever additional "violations of the laws of war" the secretary of defense decides to add later. The November 2001 executive order creating the commissions, by contrast, was limited to members of Al Qaeda, people who had harbored terrorists, and people who had committed, abetted, or conspired to commit "acts of international terrorism."

Once someone is deemed subject to trial by a military commission, he faces procedures that seem designed to assure a guilty verdict. "The theme of the government," says former Reagan administration lawyer Bruce Fein, "seems to be 'They are guilty anyway, and therefore due process can be slighted.' "

NEXT: Who's Swatching the SWAT Men?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Well to be fair, this is pretty much how the regular criminal justice system–with its 99% conviction rate–is run.

  2. The conviction rate is 99%? That sounds unlikely. Of course, there are all those plea bargains, where many of the truly innocent defendants cop a plea to avoid the risk of imprisonment. I do expect a high conviction rate, even in a flawless system, simply because the state usually won’t waste its resources prosecuting someone who is obviously innocent. Spare me the protestations–I know that prosecutorial politics sometimes result in exactly that sort of thing happening, all while they’re illegally sitting on exculpatory evidence to boot. But that’s probably not the usual situation.

  3. “The Bush administration is not only asking Congress to approve essentially the same military tribunal rules the Supreme Court rejected in Hamdan v. Rumsfeld”

    I was led to believe that’s what the SCOTUS said, tribunals are Constitutionally okay if/when Congress passes legislation making it so.

  4. I propose a new National Anthem.

    “Rumsfeld,Rumsfeld ?ber alles”

  5. A 99% conviction rate would not, in and of itself, be a bad thing. A high conviction rate is to be expected in any criminal justice system where the prosecution is allowed to choose who it wishes to prosecute. In a system like ours, the prosecution is usually only going to choose to prosecute those it believes are guilty, because it knows it must prove that they are, in fact, guilty.

    The main value of our criminal justice system is not the ability to defend ourselves once we have been chosen for prosecution. Rather, it is the decreased likelihood that we will be prosecuted in the first place.

  6. There’s also the statistic that I’ve seen, which I believe to be true, that states that 95% of all criminal prosecutions are not challenged by the defendants. In other words, they plea bargain for a lesser offense or confess to the crime charged.

  7. The Catholic Church and the USA: My two great disappointments.

  8. when are these little bitches sitting in the white house gonna be tried for their war crimes?

  9. The 99% conviction rate is pure bullshit, as evidenced by this report from DOJ. As for the 95% no-contest stat, if that’s even accurate, it probably includes minor violations like speeding tickets, which are seldom worth contesting.

  10. I tend to believe the 95% no-contest number simply because it is consistent with what I’ve heard from criminal trial attorneys. There’s nothing particularly wrong with that fact–it’s simply a matter of having incredibly limited resources for prosecuting crimes. Without plea bargaining, prosecutors would have to either spend a whole lot more money (as would public defenders, for that matter), or they would have to let a lot of people walk.

    I’m uncomfortable with the way plea bargaining affects the dispensation of justice, but it is a reality. In a similar sense, sealed settlements arguably do damage to society at large on the civil side. There’s justification for that, too, of course. Pick your poison, I guess.

  11. Pro Libertate,

    As I said, the vast majority of cases in the court system are for minor offenses like traffic violations and assault, and this is probably where almost all the plea bargains are coming from. Contrary to what Law & Order and its progeny would have one believe, plea bargains for murder and rape defendants are rare. According to another DOJ report here, the convictions per arrest rate for murder is about 60%, but assault is only at 16%.

  12. Fer cryin’ out loud. What’s with all the argument about conviction rates? The problem is that this President believes that he can just ignore any check of his imagined autority. He and his cronies pretend not to understand clear decisions of the Supreme Court, claim the ‘right’ to use torture by issuing a signing statement, and otherwise use fear-mongering to unconstituionally extend Presidential authority. We need some legislators with the balls to say NO to this garbage.

  13. Oh, yeah, I forgot what this thread was actually about. Well, it wouldn’t be Hit & Run if we didn’t quickly take the thread off on some tangent via our Quibbling Powers?. To return briefly to topic–it’s not a violation of due process when they’re guilty, anyhow. How do we know? Why, this Magic 8-Ball tells us.

    crimethink, I saw the same studies when I was checking out the 99% figure. No argument from me, really.

  14. They need a stacked system of justice that will not afford the captured any ability to question anything. This is because we have no real case against most of them and the administration does not want that egg on their face.

    Many at Gimto are people “sold” to us by Northern Alliance partners. We have no idea if they were or were not involved with anything the NA claims. That is why the administration needs to allow hearsay.

    They want to keep evidence classified so they can claim real evidence exist when it does not.

    Gitmo is a mess because of a lack of job quality when we started capturing people. We grabed who ever we wanted without having a real reason to do so and/or took prisoners on the words of others.

    Holding people after they are found not guilty, lowering the justice bar to the lowest point, not allowing people to face their accuser, not allowing people to challenge the evidence against them, were not these things part of the reason we hated Russia back in the day. They are certainly not actions of a country that belives in freedom, rule of law, and human rights.

  15. This thread departed on a tangent, because there was nothing to say about the original entry. SCOTUS said tribunals would be Constitutional if and when Congress made them legal.

    Why the hell wouldn’t Bush ask for exactly what he wanted? SCOTUS gave no indication that they needed anything different.

    And, need I remind the partisan among us, that SCOTUS also said indefinite detention was also legal and constitutional. So, in effect, the Hamdan decision removed one mechanism for actually freeing a detainee. Some victory for the Left that turned out to be.

  16. bubba,

    You are correct in saying that the SCOTUS’ requirements would be met by Congress bending over for the Prez once again. However, the question of whether using these tribunals is moral or constitutional remains.

  17. Crimethink,
    The reports you link to don’t prove your assertions. The first is giving percentages of convictions/total criminals. The 99% figure that people are citing refers to those cases that are brought to an indictment or information, I believe. Your statistics include as the denominator all criminals, regardless of whether they are caught and whether the prosecutor decides to pursue the case. Most cases filter out simply because there is never an arrest or the prosecutor decides not to prosecute. (Dropping a case or not getting an arrest is of course less common in cases of serious violent crimes).
    As your claim that plea bargains in rape and murder cases are rare, your link shows that of 8,600 murder convictions, 5,000 were plea bargains. For rape, it’s 8,600 out of 10,600. That is hardly rare.

  18. I’m not sure if SCOTUS has really approved indefinite detention. I haven’t seen anything that would convinced me of it yet. You might have read something I haven’t. SCOTUS was acknowledging that the Constitution gives Congress, not the President, the authority make rules concerning captures on land or sea. Just because Congress passes a law does not make it constitutional. To hold someone indefinitely without due process is unconstitutional. The question is whether the Constitution applies to Gitmo. A few say no.

    I’ve seen a video of Scalia talking to some class, his concern with Gitmo is with how long they would be imprisoned. Although he outright stated he didn’t believe they had any constitutional rights whatsoever. So I do not believe he would vote for it.

    Check out the video, the class is a little disrespectful though. It’s not till the end that he states his position which I speak.

    SCOTUS has refused the administration a blank check. They are giving Bush some leeway due to war, but war should be a temporary state and they know that. Congress could approve Bush’s plan but SCOTUS could still knock it down as uncontitutional. I’m not taking any bets though.

  19. “,i>So, in effect, the Hamdan decision removed one mechanism for actually freeing a detainee. Some victory for the Left that turned out to be.”
    Some victory for America that turned out to be. I’m not sure the conservatives among us appreciate your characterization of the Constitution as left wing property.

  20. “The Catholic Church and the USA: My two great disappointments.”

    Hey raymond, Delta and American have planes leaving the country on an hourly basis.

  21. Lamar A real conservative wouldn’t.

    There are too many of what I call the bubblegum conservatives. They don’t real know what being a conservative is all about. They usually get all their information from Fox News, while claiming the media is left-wing biased. They never read George Will and have little idea of who William F. Buckley is. Most of them are still clinging to Bush, despite the majority of real conservatives have jumped that ship. And yes, they are the ones that call people a liberal for defending freedom, and the Constitution.

    That’s what I like about posting here at Reason, very few, if any, bubblegum conservatives come here. We may have some heated debates, that’s ok, but we are all pretty respectful and respect is something you don’t get on most boards.

  22. Hey, at least we have that to be thankful for: No major party is actually repudiating the Constitution.

Please to post comments

Comments are closed.