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REVIVING THE MILITARY COMMISSIONS.
Obama's decision to revive the military commissions is a contradiction of his campaign promise to abolish the military commissions. The AP reports that only 20 of the 241 detainees at Guantanamo will be tried under military commissions. The number is not a significant departure from those tried under Bush.
“Only around 12, were ever even presented with charges before a commission, only 3 were ever convicted," says the ACLU's Jonathan Hafetz. "Even during the Bush administration there was a recognition that only a relatively small percentage were going to be tried by military commission.” Hafetz is also skeptical of the idea that the administration can "save" the commissions by adhering to stricter rules of evidence governing the admission of hearsay, which is not allowed in civilian criminal trials, or the banning of evidence gained from torture. "There will be an attempt to continue to launder coerced evidence through lax hearsay rules. The bottom line is that if they’re claiming to make the military commissions more like the federal court system, why aren’t they using the federal court system?"
The revival of the commissions seems to be directed at the often referred to "third category" of detainees, those whom the government believes are too dangerous to let go but are unable to try. While the Obama administration insists that it will be applying stricter standards of evidence to the commissions, Hafetz says that the revival of the commissions in and of itself is an admission that the administration is attempting an end-run around the Constitution, adding that there's no reason to believe the military commissions would work better than the federal courts.
"The federal criminal system, and the material support for terrorism laws, have proven capable of trying terrorists from low-level supporters to significant players," Hafetz says. "The federal courts have tried dozens in the time that the military commissions have tried virtually none. And they can do it while maintaining a sense of legitimacy, which is crucial to the fight against terrorism."
Obama's decision to revive the commissions is unlikely to settle the issue completely. While it will depend on the individual specifics of each case, the Bourmediene ruling from June of last year that established habeas rights for Guantanamo detainees will likely be the platform through which civil-liberties groups intend to challenge the constitutionality of the military commissions, just as they did under Bush.
Asked whether he thought civil liberties groups intended to challenge the revived Obama military commissions, Hafetz said, “Oh absolutely.”
-- A. Serwer
COMMENTS (7)
A commenter over at Ambinder's blog was spot on: this sort of hair-splitting is exactly opposite of what people like about Obama -- the lack of post-decision rationalizing.
I wish the GOP would dump all their John Yoos and go after Obama's supposed "big government" as it applies to pres powers. As kooky as Ron Paul was, there's going to continue to be a huge political void where one could attack big government w/ isolationist-like arguments from the Right.
Posted by: Chris_ | May 15, 2009 7:29 PM
I don't think the article ever answered the question... why AREN'T they using the federal system? I think surely there are some reasons for that which aren't being given here. How can one evaluate only on one-side of the argument (namely, a list of reasons why one SHOULDN'T use the military tribunals vs. THAT plus a list of what reasons were given for not using the federal court system and what reasons are given for WHY the current solution was decided on.) From what I've seen so far, Obama is a person to give his reasons for doing one thing vs. another. If I'll say one thing in his favor, it's that he thinks.
Posted by: Elizabeth Louw | May 15, 2009 9:29 PM
2 shockers in about as many days. First the refusal to release the terror photos and now this.
Extreme individuals need to be brought to justice by any means necessary. The freedom which is afforded to all law-abiding citizens is a product of doing what might not be popular but what is right for the U.S. and its interests. If the ACLU attorneys always had their way we would live in anarchy. A nation of people with their own individually-decreed laws.
Congrats Mr. President. You went 2 for 2 this week :)
Ryan
Posted by: Attract Prosperity | May 16, 2009 9:51 AM
Obama can't keep Guantanamo
The prisoners were 'tortured'
innocnet or not. you can't let them tell the truth of the hell they went thru.
Suppose it was me. 9 years locked up and tortured while innocent... . If they let me go I'd blow away the first US-er I could.
So, Obama sure as hell is not inclined to let me go. But still wants to close Guantanamo, right? Just find an ex-celmate whoś gone do the hearsay to keep me locked up for good.
A good president sometimes has to do harsh things.
Glad I'm not in his shoes.
Posted by: abelgianguy | May 16, 2009 11:12 AM
@Chris.... Obama's a lawyer and a constitutional law prof to boot. Hair-splitting is no surprise, and no surprise to me with nine months' foresight.
Now, on issues like this, the Abu Ghraib 2.0 pix, the "state secrets" issue, etc., will people who claim to be progressive actually DO something ... like look at Greens or other third-party alternatives?
If not, you're part of the problem, enabling the enablers.
Posted by: SocraticGadfly | May 16, 2009 12:48 PM
I really liked a story on Femisex.com that lists many of Obama's failings on the torture issue. It is a piece on the inanity of Naomi Wolf supporting Obama over Clinton on this issue, but really show all of Obama's flip-flops from his campaign promises on "rule of law."
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