When I met with Mr. Hunter, it was impossible to foresee the kerfuffle over a letter that had not yet been written. But the chairman pointed out that it was a JAG (though not one of the officers who signed the letter), who persuaded him to support the president's legislation. In setting up terrorist tribunals the administration has two options. It can adopt the Uniform Code of Military Justice, the same body of law used to court-martial soldiers, in its entirety or with certain exceptions. This is the path Sens. Graham and McCain want the administration to take. Or it can write a new set of laws specifically designed to handle unlawful combatants.Somewhere out there the gods of law are laughing their heads off.
Before making up his mind on which direction the administration should take, Mr. Hunter asked military officials testifying before his committee a very simple question: If terrorists apprehended on the battlefield are to be tried under the UCMJ, when will the right to an attorney kick in? The answer, Mr. Hunter learned, is about when soldiers have a suspected al Qaeda operative "spread eagled over the hood" of a HMVEE. It was clear to him then that the legal code for military tribunals "has to be something custom made for the war on terror."
Soon, in a combat theater near you, the 82nd Airborne will be dropped into combat against terrorists. Additional aircraft will drop into combat the 666th Combat Defense Attorney Brigade (the legendary C-DABS). As each trooper in the 82nd lines up a shot at a terrorist aiming at him, one set of the 666th CDAB attorneys will file a motion with the Combat Field Judge asserting that the trooper is about to violate the rights of the jihadist at whom he is aiming. The trooper's counsel will point out the imminent danger faced by his client and will assert "self defense" - meanwhile, the jihadist is blazing away at the trooper, ignoring the temporary injunction papers being waved at him by the Combat Marshal.
Other members of the terrorist group are gunning down members of the 666th Brigade as they try to present their business cards and establish an attorney-client relationship. Eventually the terrorists run out of ammunition only to discover that their AK-47s have not come close to being able to damage the American military as will the legal system about to invoked on their behalf by American law.
CDAB deaths will always be high, but given the ever-increasing number of American law schools cranking out an endless stream of unnecessary attorneys looking for work, the losses will be quickly replaced.