Hamdan Decision

I urge you to take due care when proposing legislation to authorize the military commissions becasue we do not want to appear to repudiate the Geneva Convention. All the Court applied was Article 3, which only institutes beasic protections to the suspect, and allows for trial, according to the Court, in a "regular military court." This is not a political issue. In you rush to support the administration you may end up doing far more damage than the solution is worth.

Please do not make this a you against the court situation because you were rebuked for an appearant misrepresentation of comments later entered in to the Record after the debate.

You have stood for the rule of law and hame treatment of the detainees. You have also said that the commissions need to adhere to the rule of law. If there is a commission at Guantanamo that does this please elkaborate I will listen and consider the information. I trust you and hope you wil not disappoint me here. Please look to your experience as a JAG lawyer when working on the legislation. Do not authorize the same type of commissions aka Hamdan that the Court said needed to be reconstituted to follow the UCMJ. If you do not wish to allow Article 3 of the Geneva Convention to Control then you must let the UCMJ control. This is the law that protects the military. If we do not protect and provide basic protections to these suspects we can no longer expect other countries in a time of war to preserve our basic protections.

I ask you to pleas discuss thei with Lt. Cmdr. Charles Swift because he may have valuable input for how the commissions should be constituted. Please do not forget your many declarations that we are a rule of law nation.

I do not wnat to be disappointed by your actions. I will give what ever legislation you propose a fair analysis and hearing, but I want to be assured that it will be fair. We already have defense council filing letters that say they will not participate in the Commissions because they do not want to be prosecuted under the Federa War Crimes xtatute that incorporates Article 3 of the Geneva Convention. In order to reverse the Article 3 determination of the court you would have to write into law an exception to 18 U.S.C. § 2441. War crimes that would exclude terror suspects from coverage. This is dangerous, especially if the President is the sole determiner of who is an enemy or unlawful combatant becasue than any noncitizen captured on the battlefield would be exempted from this law. Other Countries could follow suit and our soldiers would be in grave jeopardy.

There must be effective and fair status determination hearings that are not influenced by a Presidential determination. Government lawyers must be made to make their case as they would in grand jury proceedings to secure an indictment.

You must also be part of vigorous oversight that makes sure the administration follows the rules set forth by congress. Please also explain to the American people what process you saw down at Guantanamo that you say you can support. I assume that the process provides the basic protections, especially the suspect being present at the hearings and the lawyer having access to the information.

What could be the problem with holding a series of hearing startying with status determination. Next would be a hearing that would determine if there were enough evidence to proceed to trial on the charges. If not we could still grant a way for an "enemy or unlawful combatant" to be held for a specified amount of time before a review is held based on evidence that whil e the charges won;t stand, presents an reasonable danger or probable cause to believe that even though the charges fail this individual presents a danger to the U.S. or U.S. interests. Or if they are determined to be "unlawful combatants, then we can charge them with that and they would be subject to 18 U.S.C. § 2441 for committing war crimes. Thus we could try them on the code violation in the commission. Think about the advantage if Article 3 applies to our military commissions than it also applies to the combatants and makes them elegible for war crimes charges. I have no problem with calling attacking innocents a war crime because it is. We were not at war when we were attacked, but the combatants were, so they would be subject to war crimes charges. If we were to charcge them with say in Hamdan's case being a member of an organiztion that conspired to attack and destroy the United States than that would stand, provided there was evidence that illustrated probable cause to have concern that the person was adanger because of prior activities.

Pleas consider my opinion. I respect you immensely and do understand the need to try these suspects in military commissions. I also urge you to be careful that you do not write legislation that appers to repudiate the Geneva Convention because even you know how important that document is to the protection of our troops in future conflicts. Please consider the danger of creating a seperate and unaccountable legal system fort his group of people. We need to show that we are better than they are by not writing exceptions to our laws, appearing to repudiate internation protocols to which we are a party, and allowing less than adequate chance at defending oneself to charges.

We have always been about justice and fairness. We value life and they do not. We value freedom and they do not. We always seek to claim the moral highround, but will lose it if we handle this issue the wrong way. Please be very careful with this issue. It is not about the administration or politics; it is about the rule of law.

I would very much appreciate a response.

Thank you.