Obama's Military Commission Disaster
Astonishingly, today President Obama announced that, after two false starts, we are now about to embark on our third attempt at trying terrorism suspects in military commissions--a forum that has been proven not to work at delivering justice that is either swift or fair. Today's mindboggling announcement promised that the system created by one of the last acts of the 2006 Republican congress--the Military Commissions Act (or MCA)--would be revised by Congress to add procedural safeguards before any trials moved forward.
Candidate Obama told us "[a]s President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions." The Administration has struggled today to explaining its about-face, contending that as a Senator Obama had supported alternative versions of the MCA that provided more of the procedural protections he claims he is now adding to the MCA trials. But putting this supposed fairness to one side (and more on that below), the entire concept of military trials for alleged terrorists is a disaster from the standpoint of its impact on the public perception of the United States.
Military trials are, for people living in countries with histories of military rule, redolent of their own periods of dictatorship. Whatever Americans become convinced of regarding their fairness, no one abroad will regard them as any different than President Bush's two rounds of commissions.
That loss of confidence threatens to erode the willingness of ordinary people in foreign countries to work with American law enforcement as their eyes and ears on the ground--just as the same phenomenon happens in our inner cities. It also has the potential to erode the willingness of foreign governments to work with us. Recall that Spain announced after 9/11 that it would not extradite suspects to face trials in the first set of military commissions (the ones created by President Bush in November 2001), and that other European countries have delayed extraditions while assurances were sought that the defendants would be tried in the civilian criminal justice system. Contrast the experience immediately after 9/11, where the trial of the East African embassy bombers in the federal criminal courts in 2000 built the public record necessary to convince the world that simultaneous attacks were a hallmark of Osama bin Laden's organization--and thus allowed the United States to successfully assign blame to Al Qaeda and build a coalition rapidly to intervene against them in Afghanistan. In short, the use of military trial systems threatens our national security.
There are more profound issues of perception at play as well. Recall that in the spring of 2007, when Khalid Shaikh Mohammed, the admitted mastermind of the 9/11 attacks, first had an opportunity to defend himself before a military panel (his CSRT), he expressed regret for the deaths of civilian women and children on 9/11 but said, essentially, "that's what happens in war, as you Americans well understand." Placing him before a military court for his trial plays into his desire to portray himself as a military figure engaged in a political struggle with the United States--exactly how he wants to be seen in the Muslim world--rather than as a mass murderer. Ironically, Obama met with 9/11 families just after announcing a policy that will allow their murdered loved ones to be portrayed as "collateral casualties" in a military conflict. The 9/11 planners seem likely to plead guilty in whatever forum they are tried in. The question that needs to be asked now is not whether they will be convicted, but rather what meaning the (worldwide) public will take from their convictions.
What could have provoked President Obama and his advisors to go down this road? Were technical legal concerns at work? Was it "double jeopardy" concerns--did the fact that defendants were charged and juries empanelled before the commissions mean that essentially the same charges could not be brought in domestic court? Not at all--the fact that all commissions offenses required an extra element of proof means this would never have been a problem under the "all-elements" rule. Was it a statute of limitations concern--the idea that too much time had lapsed since 9/11 for charges to be brought in ordinary criminal courts? Again, absolutely not: the limitations period in which an indictment must issue is 8 years for most transnational terrorism offenses, and we are months away from the 8-year anniversary of 9/11. (In fact several current commission defendants are also subject to standing indictments in federal court.)
In fact, President Obama's chosen path ensures that more technical obstacles are likely to arise than will be avoided. The first trial run through any new process is always fraught with missteps and delays as the parties and judges orient themselves along their new and unfamiliar trail. That means that we will see long delays as the kinks are worked out. Exactly the same thing happened with the first commissions crated by executive order during their first halting steps forward in 2005, and the mishaps increased by orders of magnitude with the MCA system from 2007-2008, even though there was much more guidance from Congress and hundreds of pages of rules and regulations were written before the process started. No matter: the only way to make a system run smoothly is to test it, which in our civilian criminal trial system has been done for two centuries. And this is not to mention the long delays that will attend Congress working out the details of the new system, as President Obama wants them to. (What a waste of legislative capital any political fight with the Republicans to ensure fairness promises to be!)
Appeals regarding the constitutionality of the new system--as with the old--will come; but unlike the Hamdan v. Rumsfeld challenge decided in the Supreme Court in 2006, federal court review of basic issues like whether the new system is constitutional (which in Hamdan happened before trial thru preemptive habeas petitions) will likely come after the military system is exhausted. So this system won't deliver swift justice on appeal either.
Retroactivity will still be a problem. Recall that under the MCA, not only the court but also the crimes were new--defined in 2006, long after the defendants were in custody. One of the oldest maxims of criminal law--the prohibition on ex post facto laws--can only be circumvented if the government can prove that the offenses spelled out in the MCA were traditionally offenses against the common law of warfare--yet in Hamdan the Supreme Court all but said that "conspiracy" (which is, together with its near relative "material support," the most frequently charged offense in the MCA system) is not a traditional common-law war crime.
Evidence from torture--the raison d'etre for the MCA system--will not be admissible, the new administration assures us. Torture was never likely to be a huge obstacle to some form of trial for genuinely significant terrorism leaders: between creative alternative charging and the use of extrinsic evidence, surely they could convict KSM of something without using his own interrogations or those of others held in the CIA detention program. KSM, for instance, admitted planning 9/11 to Al Jazeera long before he was captured and tortured. But there are two back-door routes by which torture may end up infecting the new commissions. First, the President has already announced that the new commissions will allow broader use of hearsay evidence--basically, statements that one witness reports another person said--than would be allowed in federal criminal courts. If interrogators come in to testify and claim that other, firsthand witnesses freely gave incriminating evidence against a defendant, how should the defense team prove those witnesses were in fact tortured or coerced without having them there to cross-examine? Secondly, there are issues around "clean teams"--groups of FBI interrogators who interrogate previously-tortured witnesses and ask the same questions as the torturers, without the torture. Are any new statements uninfected by the torture? It remains to be seen how skeptical the new courts--and their unknown judges--will be on this issue. In federal criminal trials, all of this dubious evidence gets excluded--as it should, based on its unreliability.
If the President's ill-advised decision ultimately becomes a reality, it will be interesting to see whether some defendants actually do better in the commission system after conviction, owing to the fact that the authorities have much more leeway in setting sentences. In the domestic system, absurdly draconian sentencing guidelines mean that in terrorism cases, very long sentences are the norm even for low-level, non-planner figures like Salim Hamdan--who got time served plus a few months after his military conviction.
Candidate Obama put it well in response to the Supreme Court's decision in our Guantanamo cases last summer: "The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values."
In sum, today was a disaster for American justice and for the hearts-and-minds aspects of the global struggle to contain terrorism--a shockingly stupid move, a betrayal of our fundamental values, and a grave setback for our national security. It belies a perspective constrained to the United States, driven by last week's polling numbers and little else in the way of long range thinking. We expect that from clowns like Ray Wolf and Newt Gingrich--whose main objection to real criminal trials seems to be, absurdly enough, that the defendants have to be brought to the mainland to face trial. But we expected better from Camelot II and its vaunted team of legal advisors. One wonders which one of the tin-eared, non-lawyer political hacks around Obama is responsible. (And that's taking the most charitable view of the people actually in charge...)
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This is a bad idea. Obama's reversal is the worst sort of betrayal. He knows his loudest and earliest supporters were civil libertarians. The idea that he knows better than the law and the Constitution is regrettable. He said he'd do better than Bush. This is very much more of the earlier Bush policy.
First the continuation of the banker bailout while ordinary people lose their houses. Second, comes yes on don't ask don't tell but not anytime soon. Third, we will pull out of military engagements by and by. What conditions changed between the campaign and now?
People, the right wing is hungry for blood and will overreact and propagandize even the smallest things, observe their recent hate and fear ads about bringing Gitmo prisoners onto American soil as if it would mean the end of us all. In this kind of environment Obama can't just jump in and do the right thing, he has to enable the process so that the process produces the desired result. That's his proper role as President, and he's no dictator wannabe like Bush was. This issue will likely be decided by the Supreme Court anyway, so what better thing than the Obama administration opening a window of transparency into the whole process of how we treat our prisoners so that a national discussion ensues about our value system and our Constitution. Are we going to stick to what it truly means to be Americans or are we going to wave the flag and sport flag pins while marching along like a herd of 'good Germans' tacitly accepting torture and indefinite detentions, preemptive war etc. ad nauseum? This is the national discussion we need more of as all the dirty laundry gets aired, and that's what I hope will happen. I think Obama's being very smart if he's more or less doing it this way deliberately and I know he's a very smart man, so I'm optimistic. Relax and enjoy the show, everyone. Don't forget it's participatory and you get to have your say in shaping it too.
I just posted and forgot one line. How do decide if you're doing the right thing? Just do whatever is the opposite of what George Bush would do! CounselorDave
I'd like to get simple, if I may be permitted. I'm an alcohol and drug abuse counselor, and we deal with a Brain disease, in Addiction. Our scientific approach has confirmed a lot of the 12 step (Spiritual) concept to be just good psychology. One thing that we all agree about is the definition of "Insanity". That would be doing the same thing over and over again, expecting a different result. You don't have to know any statutes of law to own up to common sense. That aside; why in the world does the Executive Branch of the United States of America feel compelled to find some alternate system to the one we've been developing and using, with amiable results, for hundreds of years, to obtain "Justice"??? I am so disappointed in this flip, by Obama, that it just about nullifies my belief that real change is going to happen in My Country. The whole issue of this country brushing aside "human rights" and acting as if it were no big deal, is just totally, completely, unquestionably traitorous and shameful! Where does it all stop? Another American revolution? Throw 'em all out and start fresh with 2 year term limits? It would break up the DC gang syndrome!
I absolutely hate it when Obama flip-flops, compromises or just plain ignores the promises he made to America which got him elected. I hope he realizes that people are keeping track of what he said he would do versus what he is actually doing. I believe he should keep his word when he promised that he would abolish the military tribunals. The remaining detainees may be a bunch of murderous no-good vermin (or not) but everyone being tried under American justice is presumed innocent until proven guilty without exception: this is what the world expects from us and I believe we should continue this tradition of fairness. Anything less tarnishes our reputation and will cause us endless trouble in the future.
We first need to define 'military men'. Military men are paid killers. There is nothing NOBLE or BRAVE about military men or women. If you are stupid enough to deliberately put yourself in the line of fire then you sort of deserve the consequence. It will take a while for this to actually sink in.
Well, the political hack (as you put it) in all of this is Obama...
"Placing him before a military court for his trial plays into his desire to portray himself as a military figure engaged in a political struggle with the United States--exactly how he wants to be seen in the Muslim world--rather than as a mass murderer." - Please... war has changed and these groups have been at war with us for 3o years now...
The trouble is when folks start to think and act on this as if it were a Police-like issue as we know that failed miserably.
Hearts and minds... we've won that and continue to do so if the left would get off this notion that hight-lighting our weaknesses and mistakes is some sort of noble cause - madness!
Yep President Obama sure has shown wisdom, just do what the last person did and all the long winded posts rationalizing this decision is telling, President Obama is not on anyones side, he is all about obama, heck he threw his grandmother under the bus, this is what we elected...
Septimus Severus Obama
More Caramel, more Sugar,
Sweeter smiles, Friendlier embraces
Gentler noises
The same big shtick
The same formula
Just take one tweak
away
Add a new one
And the New Coke Tastes nearly Like The Old
The Sheeples Like it
they’re drinking it up
Yes we will
be happy earning
Chinese slave laborers wages
as
Larry Summers nods out
At the first Cabinet meeting!
Yes we can!
Fill the gas bag with hope!
THE OBAMBI’S FIRST 100 DAYS
a.k.a. the Goldman-Sachs Presidency
9 BROKEN PROMISES
5 KEPT [sort of]
FAR MORE CONTINUITY THAN CHANGE
are those broken promises, too
or not???
==========
1] No change on Nafta=broken promise
2] Limit defendants rights= broken promise
http://new
3] claim sweeping executive secrecy powers.=br
4] USE OF PRIVATE CONTRACTORS or you could call it:
CONTINUITY = I.E. NO CHANGE. so the same guys that used to work for “agua negra” now XE work for DinCorps, big diff! but not for interrogations?? who needs them anyway if you’ve got the c.i.a. doing it???
5] Closes Gitmo but ctd. Bagram: no change even in hypocricy:
http://www
6]Despite Obama's Disarmament Vow, Missile Shield Continues, defense, fewer of one plane, more of another; “defense” budget increases by 70 billion
http://www
etc etc.
It is disheartening that Obama is taking orders from the military rather than being the commander in chief.
Indeed. At least in principle, leaders in a democratic republic should be far more fearful of the citizenry than the military, the citizenry are the leaders' bosses. Government leaders bowing to the whims of military brass is eerily reminiscent of dictatorships.
I believe listening to Washington instead of the military leadership on the ground is what happened in Viet Nam. WE LOST remember..
This is not an episode of Law and Order where a liberal judge can just let a rapist or murderer go free because of a technicality and the hour of television is over and no one is hurt in reality. This is serious stuff. Let these admitted terrorists go due to the legal malfeasance of the Bush administration, and they will certainly come back and kill hundreds, thousands, or perhaps millions of people.
It would have been better to have established Nuremburg type trials from the beginning. Now Obama is doing the best he can to balance the need for justice with the equal need to protect the citizens of the United States.
I believe absolutely in Obama. He will do the right thing, and he is.
The truth I want:
Obama has reconsidered his rejection of military commissions because the public would not accept the inevitable acquittal of these “enemy combatants” in a court of law, which would throw out almost all of the evidence against them. He can accept military commissions, and then modify the rules of evidence to an extent that will allow conviction and punishment of those who are clearly guilty, and acquittal of those who may be guilty of relatively minor crimes or innocent. The chess master truth.
The truth I worry about:
Obama has abandoned his commitment to justice and the Constitution because he is a tool of the military and an extension of Bush. The corrupted oligarch truth.
Is he the chess master, or is he the corrupted oligarch?
In the case of our wrecked economy?
In the reform of banking laws, the auto industry, and Wall Street?
In ending the horror of multiple irrational wars (Iraq, Afghanistan, Terror, Drugs)?
In closing Guantanamo, Bagram, and the rest?
In Honestly Brokering a resolution in Israel / Palestine?
In delivering Universal Health Care?
In ending our addiction to oil and wanton destruction of the environment?
In restoring our honor, and place as a great nation, a beacon of freedom and justice?
Please, let him be the chess master.
I agree. Even though the elite put him into power, really folks he had lots of help getting elected, I hope he can become the president we voted for and say no to his masters. Like Kennedy did. YOUTUBE OBAMA DECEPTION.
Did you hear that? No, that wasnt the other shoe dropping..
I think Mr Kadidal's main point is that terrorism is a law enforcement issue. He makes military commissions sound new and untried, when they've been part of legal system for 200 years. He deplores the Military Commissions Act, yet the democratically controlled Congress and Senate have not uttered a word about changing the law of the land - which would be a simple matter if the MCA was such an egregious miscarriage of justice. They're ramming all kinds of other legislation through at breakneck speed.
It is of course the writers prerogative to try to establish NEW legal precedents. The effect however will be to cease to defend us against the war declared on us. He should say to the American people that we need to accept a certain level of losses. A certain number of skyscrapers, airliners and - if they get nuclear weapons - a city or two, are going to be written off in order to "preserve" our values.
We'll send in the FBI and local law enforcement to gather evidence from the smoking ruins and the corpses, then try the suspects in absentia and wait for the suspects to be extradited by these countries which now suddenly love and respect us. Bin Laden was already under indictment as he freely planned and financed 9-11. We can't compromise our ideals to capture these terrorists before they attack again.
If he wants to change the law of the land, he should be writing to Congress.
This is an excellent article with many points I had not yet heard raised. I am grateful for the additional context. I hope the Administration will get a copy. Thank you, Mr. Kadidal.
President Obama still has the option of trying some of the detainees in American courts, but there may be some reasons he feels it necessary to maintain the option of the tribunals for some, justified under arguments similar to the one put forth by Frag1409 below that the GC and CSRT allow a legal path to such tribunals for the more difficult cases, notwithstanding Mr. Kadilal's critical point that preserving that option may cause us to lose the war for hearts and minds, which is probably the only way we will end terrorism.
It is not a simple matter when the stakes are so high and I am still trying to get it right. But I have an intolerable revulsion to the the lengthy detention without habeas corpus that so many have undergone in our name, and of course, the deception and torture for political reasons which shocks the conscience beyond anything heretofore imaginable for our country.
We have the true strength as a nation to be just without sacrificing our national security. I want to go back to being the nation that gives full human rights to yes, even the most heinous criminals. Thoughtfully and carefully, we can do this without losing the best of who we are.
Yo Ono...what the hell are you smoking? Except for beating up defenseless women and shooting people out of hand for lack of blind adherence to islamic law, what in the hell would any of these GITMO detainees be good for? If these were Nazi concentration camp guards or some of Pol Pot's soldiers would you have the same intolerable revulsion? The only reason these detainees are not the same as the examples cited is that they were stopped dead in their tracks by the US military and US policy before they were able to commit all the atrocities and terrorist acts they would have liked. There are so many in the world that deserve our sympathy and our help. Let's not waste it on useless pieces of dung like these terrorists.
I understand the desire to lock 'em all up and "let G-d sort 'em out," it's a natural reaction to what we all experienced in the aftermath of 9/11, but that is just the first wave of a reaction, and with some thought it is easy to see that it is not in our interests in the long term to let feelings like that guide our policy.
You may not be old enough to remember it (I'm guessing your formative years were mostly during the Reagan Era or later), but there was a time our nation was very proud to be the country that perfected the idea of having a fair trial for even the worst among us. Please think about what that means. The trade-off for not getting our blind revenge impulsively, was the comfort that true and impartial justice would ultimately be served. Even the criminals convicted under such a system have to admit that their sentences are just. And the innocent have nothing to fear. What a country! Isn't that your country, too?
Please don't give up so easily on the idea of justice and national security existing hand in hand. As this article suggests, the two actually reinforce each other. If you are really worried about security, consider impartial justice as part of the way to achieve it. Self-righteous thoughtlessness and violence breeds more self-righteous thoughtlessness and violence, i.e. terrorism. That's not what you really want, is it?
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