President Obama’s statement on the reinstatement of the military commissions is astounding.
I’ve already weighed in (here) on how disingenuous it is of him, in order to rationalize resorting to that which he campaigned against, to pretend that his commissions will be significantly different from President Bush’s, and I will try not to repeat those arguments. My prior post also laid out in detail the procedural protections that were provided by the Bush commissions, which clearly prove them to be “a legitimate forum for prosecution” and “in line with the rule of law.” It’s just hilarious to hear Obama laud the “long tradition” of commissions in American history and pronounce them “appropriate … provided that they are properly structured and administered,” and yet claim the Bush commissions needed “reforms” in order to be “legitimate.” The Bush commissions (especially when coupled with Congress’s provision of a right of appeal to the civilian courts) gave more due process to enemy operatives than any commissions the U.S. has ever conducted.
Obama’s claim to have ”supported the use of military commissions as one avenue to try detainees” is also misleading. Back in June 2008, he panned the Bush administration for resorting to anything other than trials in the civilian justice system. Around the same time, speaking for the Obama campaign, Eric Holder railed that Bush had “authorized the use of procedures that violate both international law and the United States Constitution.” The President feigns now that he really liked commissions all along, just not the Bush commissions, but — as he concedes — when they came up for a vote in Congress in 2006, he voted against them.
The bit about the commissions’ failure to deliver “swift and certain” justice is surprising coming from a guy who is now seeking to delay them for the second time — and for what will amount to close to a year of delay (at least) — even though some of the pending commissions were close to trial. But it is positively priceless coming from the President who has sowed throughout his administration — especially at the Justice Department — lawyers who themselves, and through their firms, moved heaven and earth to delay and derail the Bush Commissions. Indeed, Deputy Solicitor General Neal Katyal represented Salim Hamdan, the detainee whose case resulted in the Supreme Court’s invalidation of the Bush Commissions (on preposterous statutory grounds, prompting Congress to revive them in the MCA without material change). Harold Koh, the nominee to be State Department Legal Adviser, filed an amicus brief in the case.
For all the airy talk about “reforms” necessary to “restore the Commissions as a legitmate forum,” Obama’s proposed reforms are trivial. Military courts were not going to admit statements coerced by cruel, inhuman and degrading treatment. To say such statements “will no longer be admitted as evidence at trial” is absurd since they haven’t been admitted to this point. The shifting of the burden of proof on hearsay is irrelevant — again, the military court already had the power to exclude unreliable evidence and would have done so no matter which party had the burden (and if it failed to do this as to significant evidence, convictions would have been reversed on the appeal provided under the Bush/MCA rules). But it’s worth noting that these are matters to which the military prosecutors could have agreed without any need to rewrite rules or go to Congress. If Obama was really worried about “swift and certain” justice, that could have been done months ago.
The last thing KSM & Co. need is “greater latitude in selecting their counsel” — most of them will want to represent themselves, but (as Messrs. Holder, Katyal, Koh and several Obama DOJ attorneys might have told the President) finding hot-shot lawyers to represent terrorists has not exactly been a problem. Indeed, right now we provide the war criminals with a military lawyer at taxpayer expense and they are permitted to choose their own private lawyer, whom we don’t pay for and who can’t access classified information unless he or she can get a security clearance. What is the greater latitude going to be? We pay for the private lawyer? We give classified information to people who pose risks that render them unable to qualify for a clearance?
By “basic protections” for “those who refuse to testify,” I assume the President means that a defendant does not have to testify and, if he chooses not to, no negative inference may be drawn from his silence. The Bush Commissions already provided that (see, e.g., DOD Military Commission Order 1 (March 21, 2002) ”The Accused shall not be required to testify during trial. A Commission shall draw no adverse inference from an Accused’s decision not to testify”). And who knows what the President means by “military commission judges may establish the jurisdiction of their own courts”? The holding in Hamdan was that the Commissions had to be established by Congress — and, as noted above, Congress did that in the MCA.
In sum, this is what I said it was a week ago: a farce. The President boxed himself into a corner by promising to close Gitmo without a plan for how to deal with terrorists who could not be tried in the civilian system, and by slandering the Bush commissions, which were a perfectly legitimate, thoughtful, civilized legal system that provided an unprecedented appellate judicial check on the trials of enemy war criminals. Desperate to reassure the Bush Derangement crowd, Obama is trying to bluff the country into thinking he’s engaged in a major overhaul when it’s really a tweak — and an utterly unnecessary one at that. The media will swoon over how he’s evolving and at what a big guy he is to come to grips with what they, too, suddenly see as difficult national security challenges. But a big guy is capable of admitting when he’s been wrong. This is small, in every way.