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Adm. MacDonald to Become New Military-Commissions Chief

Mike Isikoff scoops the world that retired Vice Adm. Bruce MacDonald is going to be appointed new chief “convening authority” of the revamped military commissions — basically the guy who decides if prospective detainees will receive the military-commissions version of indictments — a sign that the new commissions are about to resume. Where have we heard that name before?

Why, we heard it back in September, when the Senate Armed Services Committee held a big hearing into the scope of the new commissions, featuring the top Justice Department and Pentagon lawyers responsible for both the commissions and the balance between them and civilian trials. MacDonald testified alongside Defense’s Jeh Johnson and Justice’s David Kris, and he tended to resist their inclinations to make the commissions as much like civilian trials as possible. From a piece I filed after the meeting:

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.

Kris and Johnson both argued that the courts are more likely to invalidate the commissions — which would be the third time since their creation, if you’re keeping score — the more the commissions deviate from the process rights allotted in civilian courts.

We’ll see if being involved with the commissions changes MacDonald’s perspectives. Those involved tend to either quit in disgust or emerge disillusioned.

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