All you hear from the GOP these days is “Military Commissions GOOD, Civil Trials BAD!”, but what you rarely hear is why this is a unwise prosecutorial path. Do we really want the conviction of a terrorist to go to the Supreme Court for an appeal?
The Military Commissions Act permits hearsay evidence. But a 2004 Supreme Court decision written by Justice Antonin Scalia strengthened a defendant’s right to confront witnesses under the Sixth Amendment. Whether that right would come into play if detainees are tried in the United States is an untested issue, national security lawyers said, and it could throw into question whether prosecutors can introduce written statements from other detainees.