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Martin Garbus

Martin Garbus

Posted: May 19, 2009 02:47 PM

There is No Need for Wretched Un-American Military Commissions


The changes that Obama is suggesting are little more than giving the defendants an aspirin.
The main reason urged for the continuance of the military courts is that they will permit hearsay testimony that a federal court will not, and that they will be more sensitive to classified information. They also supposedly will allow us to use information gotten through coercion. But they violate the law of the land and American concepts of justice.

None of that is true and none of this are reasons to set up jerrybuilt courts that Obama rejected as he ran for President. As both a lawyer and a constitutional law professor, he knows better and is bowing to political expedience.

The federal judges and federal courts in an attempt to get at the truth have attempted to deal with these issues for over 200 years.

There are procedures to protect classified information that have been developed over decades. There are procedures to evaluate hearsay; there are exceptions to the hearsay rule; and there are valid grounds for applying the hearsay rule when appropriate.

Otherwise, prosecutors rely on rumors and stories that are offered by fourth and fifth parties that bear little or no relationship to the truth. When the hearsay rules were enacted, it was decided by Congress that they were the best way to get in reliable, potentially trustworthy testimony before the court. They work. They have worked in those prosecutions that have thus far occurred in the federal courts

We are not talking about a great number of cases, less than 220. The criminal system can deal with them today. The real reason Obama is giving in is because of resistance by local communities to house these defendants. But that's not a reason. Also the extent there is a concern over political wrangling it will increase it in the Senate fight.

Pushing new controversial legislation before Congress to get a new court system that will not be able to function for months and be subject to every conceivable appeal, is wasteful and, may I dare say, un-American.