photo by Lulu Vision

Bmaz hit this latest chapter in the “Yes we can, but that doesn’t necessarily mean we’re going to” tour on Saturday (and Spencer hit it again this morning), but today, the White House made it official—Bush’s military commissions have now become Obama’s military commissions:

Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time. Indeed, the system of Military Commissions at Guantanamo Bay had only succeeded in prosecuting three suspected terrorists in more than seven years.

Let me see if I’ve got this right: The previous extra-legal system wasn’t up to snuff because it wasn’t codified enough? The new! improved! Obama-era secret trials will be better because they are swifter and more certain? Seriously?

The introductory statement alone, to me, undermines the whole premise that this is by any stretch an acceptable substitute for time-tested United States criminal code prosecution. The point of pre-trial evidentiary hearings and open court trials is to establish guilt or innocence, and to do it in a way that allows society—domestic, and in this case global—to trust in and bind to a social contract.

By setting out to achieve swift and certain justice—no matter how the administration will post hoc parse it—strikes me as something different. It’s legal triage—or, more accurately, extra-legal triage. American detainees are now to be dispo’d like so many patients at a busy, urban ER. Either lock them up or ship them out, as quickly and as quietly as possible. Sign the paperwork, and move on. We’re looking forward; not backward.

The problem with this “no drama” approach? It takes what was the discredited and disallowed—and previously, by candidate Obama, disavowed—process, and makes it precedent.

We have criminal courts, civil courts, and military courts martial, and now, thanks to President Obama we have “military commissions.” With the first three, laws decide where you have standing or where you are tried. With the last, however, it’s up to the president.

Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings. We will seek more time to allow us time to reform the military commission process. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.

Take a look at that fifth point—“military commission judges may establish the jurisdiction of their own courts.” One of the lawyers here remarked, “What the fuck does that mean?” Well, IANAL, but here’s what I think it means—or what it will wind up meaning: Judges that answer to the president can decide who should be tried before processed through their commissions. It is a reaffirmation of Bush’s assertion that he could determine who was a special class of prisoner or detainee that could be denied access to the protections provided under the United States Constitution.

It is a reaffirmation of the Bush-era assertion of a unitary executive.

(I just ran that by the aforementioned lawyer, and he disagrees—he thinks it basically says that each judge in each case gets to set the parameters for how the case is handled on an ad hoc basis. Different, but, I think, equally dangerous.)

Overall, the appearance here is that the Obama Administration seeks to make the military commissions “more fair”—but making an inherently unfair process “more fair” still does not make them fair. And the right to a fair trial is one of the bedrocks of our social contract.

Bmaz put it this way:

[T]he goal of any appropriate prosecution, whether criminal, quasi-criminal or other, is to provide a fair and just trial with due process, to protect the innocent and convict the guilty, and to provide a transparent forum so that the public as a whole can see that justice is being served and done. That is most definitely not what this plan is about. Although clearly the Obama Administration has sought to make some improvements around the edges, it is still nothing but lipstick on the Bush pig.

Other critics—who are also lawyers—have similar concerns:

Constitutional lawyers however have rejected the argument that the tribunals can be improved to make them acceptable and workable. Shayana Kadidal, a Guantánamo lawyer with the New York-based Centre for Constitutional Rights, said that fairness was clearly an issue but no matter how extensively the system was reformed "there is a problem of public confidence in the process both here and overseas".

Kadidal said the tribunals were a "disaster" that played into the hands of the terrorists. "By trying them in a military setting, it allows terrorists to portray themselves as military figures and their victims as ‘collateral damage’."

Golly, that sounds like a bad idea.

Further, it would be my guess that the new plan won’t even accomplish the swift resolutions Obama hopes for and promises. Any new rules, once drafted (and the White House has asked for additional time to draft them), will again be challenged in US courts. Rather than quickly ending a failed Bush policy and bringing the detainees into the established US criminal process, Obama’s attempt to split another baby will only reset the appeals. The president won’t get to put it behind him and look forward, nor will he have the moral clarity to lead the US back to global primacy when it comes to human rights. If the now thankfully banished “war on terror” is really a fight against criminal elements and a battle for hearts and minds, Obama has scored a lose-lose.

Related posts:

  1. “One of the Great Disappointments of the Obama Administration”: David Frakt Talks Military Commissions, Material Support
  2. Defense counsel in USA v. KSM, et al petition federal appeals court to end Congress’s segregated, sham Military Commissions
  3. CAP Report Calls for Postponement of Gitmo Closure
  4. Khalid Sheikh Mohammed to Be Tried in NYC, al-Nashiri by Military Commission, No Mention of Abu Zubaydah; WH Counsel Craig to Resign
  5. David Kris: Our Only Military Commission Convictions May be Illegal