Here’s my wrap for the Washington Independent of today’s Senate Armed Services Committee panel with DOJ’s David Kris and DOD’s Jeh Johnson. I tried to explicate both the vagueries and the nuances of Kris and Johnson’s differences with the Senate panel — and everyone’s differences with the Bush administration — about the shape of military commissions. For instance:

Yet differences remained between the administration and the committee over the bill. Both Kris and Johnson said that they believed the commissions ought to premise the admissibility of statements from terrorism suspects captured on the battlefield on whether the statements were voluntarily provided, in order to prevent the commissions from accepting coerced testimony — a standard the committee’s legislation does not employ, although it does reject evidence obtained through torture or duress. But Vice Adm. Bruce MacDonald, the Navy’s judge advocate general, told the panel that battlefield captures are “inherently coercive,” as soldiers do not read Miranda rights to their detainees, and so predicating admissibility on voluntariness creates too restrictive a standard. “This is an area where I do disagree with the administration and I think the [Senate Armed Services] committee got it right,” MacDonald said.

Army Reserve Lt. Col. Darrel Vandeveld says that these are cosmetic distinctions. Vandeveld is a former prosecutor who resigned from the military commissions last September in protest of what he considers their unsalvagable flaws. In my piece and in this post I quote him about what’s wrong not just with the military commissions, but with the Obama administration’s entire emerging architecture of preventive detentions:

…Nor was Vandeveld impressed by Pentagon General Counsel Jeh Johnson’s suggestion today that the administration could conceivably detain people acquitted of terrorism charges. “If someone is acquitted, then, as we do today, we should release him,” Vandeveld says. “I know the president has said he does not want release someone who’s a threat to the American people. As a prosecutor of 20 years, I can tell you that happens every day in the U.S. — the recidivism rate is huge. It’s worse than people want to think about. But it’s worth the risks that one has to take if one believes in democracy and the rule of law. There are two systems already in place [for dealing with dangerous people]: military courts martial under the [Uniformed Code of Military Justice] and Article-3 [federal civilian] courts. There’s no reason to lower our standards to obtain convictions would not obtain otherwise.”

Vandeveld is going before Jerry Nadler’s House Judiciary Subcomittee on the Constitution, Civil Rights and Civil Liberties tomorrow morning at 10 a.m., and it should be worth checking out.

Spencer Ackerman

Spencer Ackerman