William C. Kuebler, a defense attorney for Judge Advocate General’s Corps, has an interesting piece on why he thinks the military tribunals created by the Bush Administration prior to Hamdan should not be exhumed by statute. Kuebler makes a number of arguments, the strongest of which, in my opinion, is that whatever we think of the (alleged) jihadists, we still need a fair trial to determine that they are jihadists. I don’t doubt that Andrew McCarthy agrees with that basic premise, but he does himself and his cause no favors when he spews idiocy like this:

So, no, we don’t owe jihadists the same trial rights we owe any honorable combatants, much less our own troops. The very notion is an insult to those putting their lives on the line in our defense.

By that reasoning, McCarthy could just as easily have written this:

So, no, we don’t owe first-degree murderers the same trial rights we owe any honorable individiuals, much less law abiding U.S. citizens. The very notion is an insult to the men in blue who work tirelessly every day to keep our streets safe. No one in his right mind thinks a first-degree murderer would give you or me a fair trial, so why the hell should we offer him one, at taxpayer expense, no less? Only innocent people deserve fair trials.

Which, I might add, would be 100% true; only innocent people do deserve fair trials, to the extent they deserve to be put on trial at all (which they don’t, since they’re innocent). So if we really know in advance who is guillty and who is innocent, why bother with trials at all?

Nevertheless, despite his verbal blustering I do think McCarthy has the better argument. McCarthy himself seems to think that a mere accusation of terrorism ought to be enough to dispense with such procedural niceties as fair notice of the charges, representation by counsel, a right to conduct discovery or even … horror of all horrors … a presumption of innocence until proven guilty, but fortunately, the Administration doesn’t. What the Administration does want to do is to prevent alleged terrorists (and let’s face it, many if not most of those alleged terrorists are terrorists) from getting their hands on sensitive classified information they can’t be trusted to “forget” once they cease to be alleged terrorists and in most cases start being convicted terrorists - and in some cases, wrongly acquitted ones. Nor does it want to set up the next Lynne Stewart to accidentally-on-purpose share classified information with the client, so instead, the Administration allows all information used against the client to be seen and used by his military lawyer. When dealing with highly sensitive classified information, that’s probably the best we can do.

Note however the absurdity that would result if we were to enter into a new McCarthy era, and alleged terrorists were not entitled to a presumption of innocence or to representation by counsel. That system would be a real bummer for any poor schmoe who ended up in custody and was unable to pay the going rate for a military lawyer. He could represent himself at trial, but he couldn’t see (or therefore rebut) any of the key evidence against him. He could engage any attorney willing to represent him for free, but that attorney woudln’t be allowed to see (or therefore rebut) any of the evidence against him, either. Thus, my tentative views are as follows:

1. In Washington, the Gang of Four (who, by no small coincidence, consist of all four Gang of Fourteen “Republicans” who are not up for re-election this fall) are neither leading nor following, and should therefore get out of the way.
2. At NRO, Andrew McCarthy isn’t leading or following, and should therefore get out of the way.