Five Questions About The Administration's New Tribunal Policy

I've spent the morning canvassing some experts and analysts on both sides of the Military Commissions debate; in this too-simple dichotomy, one side believes that tribunals are inherently unconstitutional when used in this context; the other believes that tribunals can facilitate justice if they're set up properly. 

1. What's the status of hearsay evidence?  Expert say that they're hearing that the hearsay rules in Obama's proposal will differ slightly from those used by regular military trials and Article III trials. The devil is in the "slightly" -- as in, under what circumstances can hearsay evidence be relied upon?  One of the reasons why the Supreme Court looked askance at the 2006 tribunal effort (the Military Commissions Act, which set up a two-stage process), was that prosecutors were given the green light to use hearsay evidence even in cases where direct evidence was available.

2. How sensitive are these tribunals to military trial precedents? Are they de novo? Do they exist as if the country ratified the Constitution in 2009?

3. Is it still the administration's preference to try the 9/11 co-conspirators in regular trial courts? Or will all of the high-value detainees be kept in military custody?

4. Can Congress and the administration agree to a uniform set of rules before Guantanamo is closed? How quickly can the trials begin?

5.The criminality, so to speak, of the Gitmo detainees ranges from innocent to murderous.  Where does the administration draw the lines -- release, Article III trial, commission -- and in doing so, do the lines appear capricious enough to provoke the ire of the regular judicial system and Congress?

Bonus sixth question: Will the administration sanction efforts by Congress to set up special national security courts? And if so, how will the lines be drawn across the four different trial categories? And will the Supreme Court be troubled by four separate avenues of justice?

Presented by

Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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