The Corner

Obama on Boumediene & Nuremburg

I have an article on the home page today discussing the rulings by civilian and military judges yesterday that will allow the military commission trial of Osama bin Laden’s driver, Salim Hamdan, to proceed next week.  Toward the end of the piece, I pointed readers to characteristically excellent post by Scott Johnson at Powerline, comparing the extensive protections afforded by military commissions to the comparatively sparse due process prescribed for the Nuremburg war crimes tribunals that the Left likes so much.  For some blasted reason, the link did not work.  Hopefully this one will.  But in any event, it is worth laying out Scott’s point in full since it involves yet more ill-informed pandering by Sen. Obama:

Speaking at a town hall meeting in Pennsylvania … Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:

I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.

… [T]he Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.

In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.

The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:

In order to ensure fair trial for the Defendants, the following procedure shall be followed: (a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. Article 26 provided: “The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review.”

In short, the procedural protections afforded the Guantanamo detainees under the statute before the Supreme Court in Boumediene [ACM — several of which I list in today’s article] substantially exceed those accorded the Nuremberg defendants. Obama’s unfavorable comparison of the legal treatment of the Guantanamo detainees with that of the Nuremberg defendants suggests either that he does not know what he’s talking about, or that he feels free to take great liberties with the truth.

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