Virtually everyone I know who regularly works on civil liberties issues believes it's a fait accompli that Obama will reverse Eric Holder's decision and deny civilian trials to the 9/11 defendants, sending them instead to military commissions (just as George Bush did). Today, White House Press Secretary Robert Gibbs provided the clearest on-the-record signal yet that this would happen, when he went on MSNBC and said that justice would be served by sending Khalid Sheikh Mohammed to "either a military commission or [to] a federal court." I've written extensively on the evils of the military commission system before, and especially the White House's cavalier view that it can just pick and choose which type of process a defendant gets based on its whims of the day. I won't re-hash those arguments here, but instead want to note a few brief points about Gibbs' remarks.
First, according to Gibbs now, the Cheney/Kristol Right was absolutely correct all along in arguing that accused Terrorists have no right to a trial and that there's no harm in putting them before military commissions instead. That's the viewpoint which Gibbs explicitly endorsed today. Conversely, Obama supporters who spent months arguing that civilian trials for the 9/11 defendants were compelled by the Rule of Law, Our Values and The Constitution -- and who were defending the White House from right-wing attacks -- just had their arguments resoundingly rejected by the White House itself, which now says that justice can be served by denying civilian trials. What are those people going to say when Obama does exactly that which they spent months arguing is prohibited by the Rule of Law, Our Values and the Constitution: namely, denying civilian trials?
Second, one cannot overstate how intensely Democrats and progressive opinion-leaders objected to Bush's decision to use military commissions -- not merely to the specific rules Bush used (some -- but not all -- of which have been improved), but to the denial of civilian trials generally. Just to get a flavor for that, consider this November 16, 2001, New York Times Editorial -- entitled "A Travesty of Justice" -- which begins: "President Bush's plan to use secret military tribunals to try terrorists is a dangerous idea," and continues: "American civilian courts have proved themselves perfectly capable of handling terrorist cases without overriding defendants' basic rights. . . . Reliance on tribunals would also signal a lack of confidence in the case against the terrorists and in the nation's democratic institutions."
Or see what current Obama Deputy Solicitor General Neal Katyal said in 2004 ("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"); or current State Department Legal Adviser Harold Koh ("No country with a well functioning judicial system should hide its justice behind military commissions"); or Senate Judiciary Committee Chair Patrick Leahy ("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"); or current State Department official Anne-Marie Slaughter (military commissions "have 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. . . . That's not this situation. It's not remotely like it").
That which Democrats vehemently and with virtual unanimity spent years condemning as a grave assault on our Way of Life -- i.e., denying trials to Terrorist suspects and instead sending them to newly created military commissions -- is exactly what Robert Gibbs endorsed today as just. Who can possibly defend this?
Third, numerous reports suggest that the denial of civilian trials will be part of an overall White House agreement with Lindsey Graham whereby Guantanamo will be "closed" (i.e., re-located to Illinois), and a new law will be enacted empowering the President to indefinitely detain people without charges of any kind (about which now-fired White House Counsel Greg Craig said last year: it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"). Of course, the administration is already indefinitely detaining people without charges.
The fact that Robert Gibbs went on MSNBC today and explicitly defended military commissions as just underscores the real point here: the continuation and affirmative embrace of the Bush/Cheney civil liberties template by the Obama administration has converted that approach from what it once was (controversial right-wing radicalism) into what it now is (uncontroversial bipartisan consensus). That's why Robert Gibbs goes on television and defends the denial of civilian trials, which were once deemed by Democrats to be a Grave Assault on the Constitution. That conversion of what were once Bush/Cheney Assaults on the Constitution into bipartisan consensus is, by far, the most significant and long-lasting impact Obama has had in this area.
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On a positive note, the Obama administration suffered a major defeat today in its efforts to shield Bush lawbreaking from judicial scrutiny. As Marcy Wheeler reports, District Judge Vaughn Walker ruled today in favor of the plaintiffs in the Al-Haramain case, who allege that they were subject to Bush's illegal eavesdropping program. For more on the background of this case and the Obama DOJ's extraordinary efforts to compel dismissal of this lawsuit (on both secrecy and standing grounds), see here and here. I'll likely have more on this shortly.
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