A few days back (see here and here), I discussed President Obama’s charade on military commissions: He is adopting the Bush commission system essentially as is, but will make a handful of inconsequential tweaks in order to create the illusion of real change. It won’t work: say what you will about the ACLU and the rest of the antiwar Left, but they are already seeing this fraud for what it is. Still, the fawning Obamedia will go along with the program.
And so will top Democrats. On that note, I’d recommend the entirety of former Speaker Newt Gingrich’s spanking of Sen. Dick Durbin (D, IL), a key Obama ally, on Meet the Press yesterday. (To his credit, NBC’s David Gregory was well prepared and extremely fair as the moderator — and he further allowed Rich make some great points during the journalists’s panel he (Gregory) moderated in the second half of the show.) But for present purposes, I want to highlight Durbin’s specious commentary on military commissions:
SEN. DURBIN: … Now, as far as President Obama’s approach at the National Archives, he made it clear and he was open to the American people, and this is what he said: there will be military commissions, but these are going to be commissions that are going to follow our constitutional values. We’re going to basically say that we’re not going to have hearsay that has to be rebutted by a defendant. We’re going to allow for the right of counsel. We’re going to have the basic approaches under the law that the Supreme Court is going to demand this.
MR. GREGORY: But do you, do you see that correlation between President Bush’s approach and President Obama?
SEN. DURBIN: I would say they’ll both have military commissions, and we’ve had them back to the time of George Washington. But the approach of President Obama is one that is closer to our Constitution and our rule of law. And just consider this, in seven years in Guantanamo there were exactly three who were convicted by military commissions, and those were thrown out by the Supreme Court. The — President Obama has learned from that lesson of history. He’s going to make sure that any military commission, military tribunal in the future is one that can be sustained by the courts.
Where to begin?
1. The change regarding hearsay is cosmetic — and really less than cosmetic to anyone who has ever actually prosecuted cases. Hearsay will still be a prominent feature in the Obama commissions. All that will happen is that the burden of proof will be on the prosecutor to show the reliability of the hearsay rather than on the war crimes defendant to show its unreliability. As a practical matter, however, the judge has always had the authority under the Bush rules to exclude any evidence the judge decided was unreliable — and in a criminal trial, judges always put the prosecution through its paces regardless of which party technically bears the burden of persuasion.
2. Durbin’s “right of counsel” claim is a joke — and one you’d think Democrats would be too embarrassed to keep repeating given the number of Obama administration lawyers who, along with their former firms, spent the last eight years volunteering their services to America’s enemies. Under the Bush commission system, the terrorists already had U.S. taxpayer-funded military lawyers and were, in addition, permitted to retain private counsel — and there was no shortage of American private lawyers (such as several at Attorney General Eric Holder’s firm) who have taken up these cases. If there’s anything these terrorists have gotten plenty of, it’s top-flight legal representation.
3. The claim that “in seven years in Guantanamo there were exactly three [detainees] who were convicted by military commissions” is another screamer. The main reason for delay in the commissions process has been the aforementioned legion of volunteer American defense attorneys who ground the system to a halt by various court challenges. At the end of this legal barrage, the only real change in the commissions was a formal one — they are now authorized by Congress rather than by presidential directive (as Bush, like FDR, had used). As a practical matter (and Obama is all about being practical, right?), they operate exactly the same way. Moreover, the current delay — now in its fifth month, with several more months to go — is because President Obama himself stopped the pending commissions against 21 terrorists (when trial was imminent in several of them) so he could first “study” them and, now, propose these illusory “changes.
4. Durbin’s assertion that the three war crimes convictions “were thrown out by the Supreme Court” is just an out and out falsehood. The Supreme Court has never reviewed, much less reversed, any of the three convictions obtained by the Bush military commission system. David Hicks pled guilty and was extradited to his native Australia; Salim Hamdan was convicted after trial, sentenced to (effectively) time served, and was extradited to Yemen; and Ali Hamza al-Bahlul was convicted after trial and sentenced to life-imprisonment. Presumably, Bahlul’s case will be appealed, but it hasn’t been yet — while the other two cases are over. In any event, Durbin has been a lawyer for 40 years. If he actually thinks the commission system has been held invalid and that the Supreme Court has thrown out all the convictions, why does he think there are still pending military commissions?
(And by the way, I wonder whether Sen. Durbin is claiming Bahlul’s trial was fundamentally unfair? Is he urging Pres. Obama to vacate Bahlul’s conviction so this al Qaeda operative can have a second shot at the 35 counts of terrorism on which he was convicted? After all, Bahlul’s jury was told that Bahlul made his propaganda film about the U.S.S. Cole bombing in order to recruit and inspire new terrorists. Shouldn’t Bahlul get a new, fairer trial? Shouldn’t he have an opportunity to call Durbin as a witness so the Senator can tell the jury — as he told yesterday’s national TV audience — how terrorism recruitment is really caused not by successful terrorist attacks but by the existence of the Guantanamo Bay detention center which has betrayed our values and made us less safe …?)
Anyway, I wouldn’t recommend that we all hold our breath waiting for Sen. Durbin to acknowledge his errors of yesterday. But it is worth our bearing in mind that if there had actually been anything legally illegitmate about the Bush commissions, Team Obama wouldn’t have to keep misrepresenting the record.