Let's talk about what that really means for the Republicans. It means they are branding themselves as pro-torture. Because what the administration's insistence upon military commissions really has been all about, from the beginning, is torture. The military commissions operate outside of the Uniform Code of Military Justice and common Article 3 of the Geneva convention which preclude the use of coerced evidence in judical proceedings.
This is explained most effectively by Neal Katyal, Georgetown University professor and lead attorney for Hamdan in Hamdan v. Rumsfeld, in his appearance at a Georgetown Law forum this week, broadcast on C-SPAN. First, he talks a little bit about how ineffective these commissions have been. (Any errors in transcription are mine.)
Not a single person was tried in these military commissions even though the administration said four and a half years ago "We don't have the time to legislate. Congress, you take too long to authorize these commissions. We need to do it right away because we need to try these people." They didn't even indict someone for two and a half years under these commissions. And when they did indict someone, they only indicted a total of ten people.
This was not really . . . about trying terrorists. . . It was about service to an agenda, an agenda of Presidential powers in a time of crisis. . . . The administration took the view that not only would it advance these extreme claims of executive power but it would do so in a context in which they said the courts have no business. . . .
Katyal points out that the courts martial process is adequate in prosecuting war crimes even of non-combatants, and would be a most appropriate proceeding for these cases. But still we have this insistence in the administration and in Congress for a legislative fix to allow for military commissions. Katyal speculates as to why:
The administration appears to be saying . . . that we should have this legislation because there is this urgent need to try people in military commissions. The . . . problem with this is that we're talking about ten people at this point, and the administration at most has said 75 none of whom appear to be a terrorist of significant stature.
Yesterday I was debating John Yoo on the Newshour . . . who said "well we can't have courts martial because the problem with that is that sources and methods will be revealed in trials. . . ." The court martial system has done a very, very good job in protecting intelligence information of the most seriously classified nature.... there are some deeper problems with this claim. First of all, 95% of the evidence in these commission cases is just the detainees' own statements to interrogators . . . and the other 5% to my knowledge has never been about sources and methods. It's like public videotapes by journalists and things like that.
The only source and method that I know of, and I'm privy to the commission defense process . . . the only thing . . . that might come in to play is the source and method of interrogation. The source and method of interrogation. Why did the detainee say these things. And that's what's hidden by the words "sources and methods." The methods that they are talking about are the methods of interrogation. And what the commission process has been about in part, is about trying to get evidence obtained by coercion into criminal trials and permit that evidence be introduced against defendants. . . .
What has been going on in this commission process has been a lot about trying to get evidence in, coerced evidence, that . . . really . . . does not speak well for us as a nation. If we really do feel the need to introduce that type of evidence into a proceeding, it has to be done in the clearest terms by Congress, and I don't frankly think whatever the legislative path is in the days to come that that will be a part of it. [Emphasis mine.]
Jack Balkin concurs, in his post on the Hamdan decision:
If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.
So what's it going to be, GOP Senators? Mr. McCain? Are you going to be among the Rubber Stamp Republicans standing up with this administration against the Uniform Code of Military Justice, against the Geneva Conventions, to codify torture? And try to smear Democrats with the "weak on terror" charge when you are putting our men and women in Iraq and Afghanistan further at risk by thumbing your nose at the Geneva Conventions?