Obama's kinder, gentler military commissions

Bush critics vehemently objected to the idea of commissions generally. Will they continue to do so now that Obama supports them?

By Glenn Greenwald

Published May 15, 2009 10:55AM (EDT)

[Updated below - Update II - Update III (Obama's statement) - Update IV - Update V (ACLU interview) - Update VI - Update VII]

It now appears definitive that the Obama administration will attempt to preserve a "modified" version of George Bush's military commissions, rather than try suspected terrorists in our long-standing civilian court system or a court-martial proceeding under the Uniform Code of Military Justice.  Obama officials have been dispatched to insist to journalists (anonymously, of course) that Obama's embrace of "new and improved" military commissions is neither inconsistent with the criticisms that were voiced about Bush's military commission system nor with Obama's prior statements on this issue.  It is plainly not the case that these "modifications" address the core criticisms directed to what Bush did, nor is it the case that Obama's campaign position on this issue can be reconciled with what he is now doing.  Just read the facts below and decide for yourself if that is even a plausible claim.

Let's concede that if the U.S. is going to continue to try accused terrorists in newly-created military commissions -- rather than under our normal, long-standing system of justice -- then it is better to have more safeguards than fewer.  That's just true by definition.  Let's further concede that many of the past criticisms voiced about Bush's military commissions, including some of Obama's criticisms, focused on the specific rules of those commissions, some of which (though far from all) are addressed by Obama's modifications, including the most important change that coerced statements are no longer admissible.  Nonetheless, the overwhelming bulk of the objections to what the Bush administration did was to the very idea of military commission themselves.  The controversy -- one of the most intense of the Bush era -- was grounded in the argument that there was absolutely no reason, other than to pervert justice and enable easy and due-process-free convictions, to create a separate tribunal rather than use our extant judicial processes.

There is simply no way to reconcile Barack Obama's embrace of military commissions with the core criticisms made about Bush's system.  Just consider what was said in the past about Bush's military commissions by key Obama officials, Bush critics generally and, on occasion, even by Obama himself, and decide for yourself if this is anything other than a replica of one of the worst and most extremist abuses of the Bush era:

* * * * 

One of the most definitive claims in this regard was from Obama himself, who -- at the height of the presidential campaign last August, after Salim Hamdan was convicted of minor charges by a Guantanamo military commission -- issued a statement that included this:

That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.

Advocating that accused terrorists be tried "through our courts and our Uniform Code of Military Justice" is plainly inconsistent with advocating that they be tried in newly constituted military commissions.  As Ari Melber noted at the time of Obama's statement:

By citing the Uniform Code of Military Justice (UCMJ), Obama is nodding toward proposals by many legal experts, and administration critics, to scrap the military tribunals and rely on the UCMJ to handle cases from Gitmo.

ABC News' Jake Tapper asked White House officials how they could possibly reconcile that campaign statement with Obama's decision now that he's elected, and this is what he was told:  "A White House official says that the president has 'always envisioned a role for commissions, properly constituted,' and that the August statement was not meant to preclude them."  That contradicts the plain language that Obama used -- anyone literate can see that, since using military commissions is the opposite approach to trying them "through our courts and our UCMJ" -- and they're not even attempting to do anything other than conclusorily assert that it doesn't.

* * * * *

Consider other criticisms of Bush's military commissions from key Bush critics and current Obama officials and judge for yourself if Obama's embrace of kinder, gentler military commissions can be reconciled with these core criticisms:

New York Times Editorial, November 16, 2001:

President Bush's plan to use secret military tribunals to try terrorists is a dangerous idea, made even worse by the fact that it is so superficially attractive. In his effort to defend America from terrorists, Mr. Bush is eroding the very values and principles he seeks to protect, including the rule of law. . . .

But by ruling that terrorists fall outside the norms of civilian and military justice, Mr. Bush has taken it upon himself to establish a prosecutorial channel that answers only to him. The decision is an insult to the exquisite balancing of executive, legislative and judicial powers that the framers incorporated into the Constitution. With the flick of a pen, in this case, Mr. Bush has essentially discarded the rulebook of American justice painstakingly assembled over the course of more than two centuries. In the place of fair trials and due process he has substituted a crude and unaccountable system that any dictator would admire. . .

American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants' basic rights. Federal prosecutors in New York recently won guilty verdicts against bin Laden compatriots who were accused of bombing two American embassies in Africa in 1998. Osama bin Laden himself was indicted in those attacks. Federal courts have ample discretion to keep sensitive intelligence under seal, while still affording defendants a legitimate adversarial process. The law already limits the reach of the Bill of Rights overseas. American troops need not show a warrant before entering a cave in Afghanistan for their findings to be admissible at trial in the United States.

Using secretive military tribunals would ultimately undermine American interests in the Islamic world by casting doubt on the credibility of a verdict against Osama bin Laden and his aides. No amount of spinning by Mr. Bush's public relations team could overcome the impression that the verdict had been dictated before the trial began. Reliance on tribunals would also signal a lack of confidence in the case against the terrorists and in the nation's democratic institutions. . . .

More than half a century ago the United States and its allies brought some of history's most monstrous criminals to justice in Nuremberg, Germany. In his opening statement at the trial of Nazi leaders, Robert Jackson, the chief American prosecutor, warned of the danger of tainted justice. "To pass those defendants a poisoned chalice is to put it to our lips as well," he said. President Bush would be wise to heed those words.

Neal Katyal, now Obama's Deputy Solicitor General, Slate, September 8, 2004:

It sounded like grist for the Ralph-Nader-They-Are-Really-the-Same crowd last week when it was announced that a John Kerry administration would scrap the military commissions now being used at Guantanamo Bay and replace them with a system patterned on military courts-martial. Yet nothing could be farther from the truth. While the Bush administration and its defenders have tried to lull Americans into thinking that what is being done at Guantanamo is "military justice" or "martial justice," these commissions have largely been used to run roughshod over the American military justice system. Sen. Kerry aims to go back to using the proud American military justice system that is the envy of the world.

Why invent a bad system when a better one already exists? . . .

[T]he Bush administration has tricked many, including the editorial writers of the Washington Post just a few days ago, into thinking that if military commissions are not used our country will be left exposed and helpless. . . .

A courts-martial system would have brought the accused to justice far more quickly. The rules would be the same as those applied to the American servicemen and -women accused at Abu Ghraib. Using those rules would have sent a powerful signal about the vitality of American military justice, instead of woefully denigrating the concept, just as the entire world is watching . . . .

Inventing an entirely new legal architecture out of whole cloth takes a tremendous amount of time and should only be done when absolutely necessary.

When asked why they do not use courts martial (or at least borrow their rules), the administration has offered two arguments. First, it has asserted blindly that courts martial are not available to people who lack prisoner-of-war status. That is flatly not the case, as the 1951 law explicitly states. Second, it has claimed that only military commissions have procedures capable of handling classified information. Yet it is patently absurd to think that our courts-martial system could not handle classified information. It already does so, day in and day out. We have had courts martial in Bosnia, Afghanistan, and Iraq. Courts martial are already tooled up to handle evidence seized on a battlefield.

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

Yale Law School dean and Obama State Department nominee Harold Hongju Koh, The New York Times, November 23, 2001:

If we should capture Osama bin Laden or his accomplices in the days ahead, where should we try them? Two unsound proposals have recently emerged. The first, and by far more dangerous, is already law: the president's misguided and much criticized order authorizing secret trials before an American military commission. The second, more benign approach, offered by prominent international lawyers, is to try terrorists before an as yet uncreated international tribunal.

Both options are wrong because both rest on the same faulty assumption: that our own federal courts cannot give full, fair and swift justice in such a case. If we want to show the world our commitment to the very rule of law that the terrorists sought to undermine, why not try mass murderers who kill American citizens on American soil in American courts? . . . .

If any judicial system in the world can handle a case like this fairly, efficiently and openly, it is ours. If four or 400 Americans had died at the World Trade Center and the perpetrators had been caught, no one would suggest that we try the murderers anywhere but in American courts. No country with a well functioning judicial system should hide its justice behind military commissions or allow adjudication of the killing of nearly 4,000 residents by an external tribunal. Why not show the world that American courts can give universal justice?

Senate Judiciary Committee Chairman Pat Leahy, November 28, 2001:

Would military commissions, however expedient, genuinely serve our national interests in the long term?

As we examine the wisdom of the military order as written, we should consider the risk whether this could become a template for use by foreign governments against Americans overseas. As written, the Military Order does not incorporate basic notions of fairness and due process that are hallmarks of American justice. It does not specify a standard of guilt for convicting suspected terrorists.

It decrees that convictions will not be subject to judicial review, a determination that appears to directly conflict with our international commitments. It allows the Government to tailor rules to fit its proof against individual suspects.

In short, the Military Order describes a type of military tribunal that has often been criticized by the United States when other nations use them. William Satire, in a column in The New York Times on Monday, described it as a "fiat (that) turns back the clock on all advances in military justice, through three wars, in the past half-century."

And what would this mean for Americans abroad - for the traveling public, or, in another instance, for the many U.S. humanitarian aid workers who often serve in areas subject to autocratic and unstable regimes? We do not want, inadvertently, by our example, to encourage the type of "rough justice" those regimes could mete out under military order.

Moreover, these military tribunals may greatly inhibit cooperation from our partners in the fight against terrorism. Spain recently captured several suspects it believes are complicit in the September 11 attacks.

Last week Spain announced that it would not extradite suspects to the United States if they would be tried by military commissions instead of civilian courts. News reports indicate that other European allies share Spain's concerns, and so might other allies in the Middle East and elsewhere. . . .

Finally, there is the danger that if we rash to convict suspects in a military commission - relying on circumstantial or hearsay evidence tailored to serve the government's case - we deepen the risk of convicting the wrong people, leaving real terrorists at large. . .

The lesson is that secret trials and lack of judicial oversight can breed injustice and taint the legitimacy of verdicts. Our procedural protections are not simply inconvenient impediments to convicting and punishing guilty people.  They also promote accurate and just verdicts.

In sum, it sends a terrible message to the world that, when confronted with a serious challenge, we lack confidence in the very institutions we are fighting for- beginning with a justice system that is the envy of the world. Supreme Court Justice Frank Murphy, dissenting in another Work War II-era case involving the use of a military commission, called the procedure "unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind."

William Safire, The New York Times, November 15, 2001:

Misadvised by a frustrated and panic-stricken attorney general, a president of the United States has just assumed what amounts to dictatorial power to jail or execute aliens. Intimidated by terrorists and inflamed by a passion for rough justice, we are letting George W. Bush get away with the replacement of the American rule of law with military kangaroo courts. . . .

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial." . . .

We should continue our bombardment of bin Laden's hideouts until he agrees to identify and surrender his entire terrorist force.

If he does, our criminal courts can handle them expeditiously. If, as more likely, the primary terrorist prefers what he thinks of as martyrdom, that suicidal choice would be his and Americans would have no need of kangaroo courts to betray our principles of justice.

Sen. Russ Feingold, September 28, 2006:

Mr. President, the bulk of this legislation concerns the structure and process of military commissions. Although we heard from many witnesses at congressional hearings this summer that we should hew as closely as possible to the long-established military system of justice, this bill instead essentially starts from scratch and creates a whole new structure. It does so despite Justice Kennedy’s wise advice in his concurrence in Hamdan, where he said: “The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.”

Anne-Marie Slaughter, now Obama's Director of Policy Planning for the United States Department of State, Hannity & Colmes, November 21, 2001:

[W]e've never had an acquittal in U.S. national court when we tried the terrorists who bombed the World Trade Center the first time, when we tried them for bombing our embassies, we had no problem getting convictions. And we had no problem getting the evidence and conducting a public trial. . ..

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

That's not this situation. It's not remotely like it.

* * * * *

Obama officials are making much of the fact that some Democrats, including him, supported a version of military commissions in October, 2006 -- when Democrats were in the minority and that was the only alternative possible to the GOP-sponsored, Bush/Cheney-favored Military Commissions Act.  At the time, it should be noted that Obama did say:  "I believe we could actually set up a system in which a military tribunal is sufficient to make a determination as to whether someone is an enemy combatant."   But the fact that some Senate Democrats supported a modified version of these commissions when in the minority and when a compromise version was their only chance to block the much harsher military commission scheme sought by the GOP hardly proves that support for military commissions is consistent with the criticism launched for years at Bush's system of "justice."  Manifestly, the case against Bush's system was that military commissions in general are a dangerous perversion of justice.

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don't trust our own justice system, that we're willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush's military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.


UPDATE: I'm obviously of the view that Obama deserves much criticism and, particularly on the civil liberties front, has inexcusably embraced many of the worst and most defining Bush abuses.  Those are just facts.  But -- as I detail here -- that is not to say that there are "no differences" between him and Bush/Cheney or with what McCain/Palin would have done.  Everyone can decide for themselves if those differences are good or significant, but they clearly exist.  Those, too, are just facts.


UPDATE II: The most disturbing and longest-lasting consequence of Obama's embrace of so many Bush/Cheney "Terrorism" policies may very well be this.


UPDATE III: Obama's just-issued statement announcing his support for military commissions is here.  I said most of what I think is worth saying about this, but I'll just add the following:

(1) Can anyone reconcile Obama's statement today with his August, 2008 statement that we should prosecute accused terrorists "through our courts and our Uniform Code of Military Justice," or with the above-excerpted criticisms of Bush's military commissions?; (2) Obama doesn't even bother to argue any reasons why we cannot try accused terrorists in our already-extant court system; (3) for those who want to claim that Bush's torture prevents obtaining convictions in a real court, Obama is purporting to bar the use of evidence obtained via torture, so how would his military commissions address that problem any better than real courts would?; (4) during the Bush era, civilian courts had a far better record of convicting accused terrorists than military commissions did, including convictions of Jose Padilla, Ali al-Marri, Richard Reid, John Walker Lindh, and Zacharais Moussoui, at least three of whom (Padilla, al-Marri and Lindh) were severely mistreated; if we could convict them in real courts, why can't we convict the other accused terrorists who are actually guilty? (5) if the state is willing to accord due process only when it is guaranteed that it can win, but then creates a new system of diminished due process whenever it believes it cannot win, the guarantee of due process, for rather obvious reasons, becomes completely illusory ("we'll give due process as long as we're sure we can win, and if we can't, we'll give you something less").


UPDATE IV:  Amnesty International USA vehemently condemns Obama and accuses him of "backtrack[ing] on a major campaign promise to change the way the United States fights terrorism and undermin[ing] the nation's core respect for the rule of law by sacrificing due process for political expediency."  They ask:  "What happened to President Obama's confidence in the U.S. justice system's ability to try detainees?  He himself said that 'we need not throw away 200 years of American jurisprudence while we fight terrorism.'"  They conclude:  "U.S. federal courts are a perfectly sound system to try any and all detainees. They have brought other terror suspects to justice, and there is no reason why these courts cannot continue to do the same."

Groups like the ACLU, Amnesty and others were very widely cited authorities by Democrats and progressives during the Bush era.


UPDATE V:  I spoke today with the ACLU's senior legislative counsel, Chris Anders, regarding the military commissions issue and Obama's attempt to conceal the detainee abuse photographs.  The discussion is roughly 25 minutes and can be heard by clicking PLAY on the recorder below.

[audio src='http://media.salon.com/2009/05/conversations_gg_anders.mp3']


UPDATE VI: Good job by Jake Tapper today in pressing Robert Gibbs for some explanation to reconcile Obama's prior statements on military commissions with his announcement today. Everyone should form their own judgment about whether Gibbs has anything even coherent to say, let alone persuasive.


UPDATE VIIThis post by Digby should be read in its entirety.


Office of the Press Secretary

__________________________________________________________________________________________________________________ FOR IMMEDIATE RELEASE

May 15, 2009


Statement of President Barack Obama on 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.

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.

These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law. In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values.

Glenn Greenwald

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