The Corner

Obama’s Commission Farce

As Ed notes, this week’s Obama administration Embarrassing Friday Night News Dump included alerting the Washington Post that the administration will be reinstating military commission trials for captured terrorists. Typical of the Obamedia, the Post uncritically accepts the administration’s fig-leaf that Obama’s new and improved commissions will correct flaws that made Bush commissions (approved by Congress in 2006) unfair, and therefore — so the claim goes — the reinstatement should not be considered a gargantuan flippero from the Obama campaign position that the commissions were a kangaroo-court of a travesty. So Post reporter Peter Finn tells us:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said. The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

This is utter nonsense. Under the existing commission rules, miltary judges have always had the authority to suppress evidence obtained from coercive interrogations, and have done so. Moreover, under Bush, the appointing authority (the Defense Department component that oversees the commissions) dismissed the charges against one of the most significant al-Qaeda detainees, Mohammed al-Qahtani, on the (absurd) ground that his interrogation was tantamount to torture. (I discussed it in a New York Times debate, here.) The admissibility of hearsay evidence has always been a red-herring — hearsay is a staple of the international tribunals so admired by many in the Obama administration and the academic Left (a redundancy, I know), and the ability to get hearsay introduced in court is a large part of the reason for doing commission trials in the first place. (Otherwise American soldiers would have to be pulled away from combat operations to testify, and much evidence could never be used because it is given to us by foreign intelligence services on the condition that it not be disclosed.) And the bit about granting detainees ”greater freedom to choose their attorneys” made me laugh so much my sides still ache — American lawyers lined up from here to Gitmo to take up the cause of America’s enemies, including many from firms connected to Obama administration lawyers (including Attorney General Holder, whose firm has represented — according to its website — some 18 enemy combatants). Finn mentions none of this.

Finn goes on to say: “The military commissions have allowed the trial of terrorism suspects in a setting that favors the government and protects classified information, but they were sharply criticized during the administration of President George W. Bush. ‘By any measure, our system of trying detainees has been an enormous failure,’ then-candidate Barack Obama said in June 2008.’” Obama was not the only one. That same month, Holder claimed the commissions amounted to “the use of procedures that violate both international law and the United States Constitution.”

Well guess what? The Obama commissions will be, in every material way, exactly the same as the Bush Commissions: They will allow the trial of terrorism suspects in a setting that favors the government and protects classified information, and they will be criticized — perhaps not quite as sharply, but sharply — by the same hard Lefties that Obama and Holder were courting during the campaign.

The media will never tell you that the Bush commission trials (as I’ve previously recounted, here) provided elaborate protections for war crimes defendants, such as: 

– the presumption of innocence;

– the imposition of the burden of proof on the prosecution;

– the right to counsel — both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one;

– the right to be presented with the charges in advance of trial;

– access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution;

– access to interpreters as necessary to assist in understanding the proceedings;

– the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes);

– the free choice to testify or decline to do so;

– the right against any negative inference from a refusal to testify;

– access to reasonably available evidence and witnesses;

– access to investigative resources as “necessary for a full and fair trial”; and

– the right to present evidence and to cross-examine witnesses.

Those are just some of the trial rights. There are, furthermore, elaborate sentencing procedures and a multi-tiered military appellate process at which a convicted combatant could get a guilty verdict or sentence reversed without ever having to appeal in the civilian courts. As Powerline’s Scott Johnson has pointed out, these protections for our current enemies markedly outstrip the paltry safeguards given the Nazis at Nuremburg — notwithstanding that Nuremburg, an international tribunal that afforded no right to American civilian court review, is celebrated by the Left (and was fondly recalled by candidate Obama) as a triumph of the “rule of law.”

The Obama campaign slandered the commissions, just like it slandered Gitmo, military detention, coercive interrogations, the state secrets doctrine, extraordinary rendition, and aggressive national-security surveillance. Gitmo is still open (and Obama and Holder now admit it’s a first-rate facility), we are still detaining captives (except when Obama releases dangerous terrorists), the Obama Justice Department has endorsed the Bush legal analysis of torture law in federal court, and Obama has endorsed state secrets, extraordinary rendition, and national-security surveillance (and the Bush stance on surveillance has since been reaffirmed by the federal court created to rule on such issues).

Do these people ever get called on their hypocrisy?

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