By William Fisher
Human rights advocates are outraged by President Barack Obama’s decision to prosecute some Guantanamo detainees through the same Military Commissions he criticized during his campaign as a “flawed” system that “has failed to convict anyone of a terrorist act since the 9/11 attacks.”
The White House said Friday that the Commissions would be used to prosecute terrorism suspects who can’t be tried in the civilian criminal justice system, but added that detainees would have expanded legal rights to make the proceedings fairer.
The Military Commission system, rebuked several times by the Supreme Court as unconstitutional, was a centerpiece of the Bush administration’s strategy for fighting “the global war on terror.”
In a statement posted on the White House website, Obama said, “Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.”
Critics representing both the Left and the Right said Obama’s decision was an unnecessary compromise of American values.
Bruce Fein, a prominent conservative who was a senior official in the Justice Department under President Ronald Reagan, told us, “The entire structure of military commissions is flawed. It combines judge, jury, and prosecutor in the same branch — the very definition of tyranny according to The Federalist Papers.”
He said,” Military Commissions are used to whitewash torture and sister outrages against the Fifth Amendment and due process.”
Other constitutional scholars expressed similar views.
Professor David Cole of Georgetown University law school told us, “You have to wonder why the Obama administration would want to saddle itself with a process that is deeply tainted by the way the Bush administration sought to use it. Surely it would be better in terms of the acceptability of the verdicts around the world, to make a clean break and use the regular courts or the military court-martial system.”
Professor Francis A. Boyle of the University of Illinois law school characterized the Military Commissions as “Kangaroo courts” that are too deeply flawed to be “fixed.”
He told us, “The laws of war would permit (Guantanamo detainees) to be prosecuted in either a U.S. Federal District Court organized under Article III of the United States Constitution or in a military court-martial proceeding organized under the Uniform Code of Military Justice. To do otherwise would be a war crime. What is the Obama administration afraid of? An acquittal? There were acquittals at Nuremberg.”
Marjorie Cohn, president of the National Lawyers Guild, told us, “Military commissions deny the accused basic due process and are not necessary to try terrorism-related offenses. The U.S. civil and military courts, which provide due process protections that comply with the Constitution, can effectively protect classified information through the Classified Information Procedures Act.”
And Brian J. Foley, Visiting Associate Professor at the Boston University School of Law, told us, “The system is fatally flawed because it was built to result in convictions — why else rig the rules to allow evidence that regular courts would reject as unreliable?”
He added, “The only people Obama is winning points with by this decision is the hard right wing (which is a waste of his time, because they will find reasons to hate him, anyway) — he’s thumbing his nose at his political base as well as at the world.”
Human rights organizations were equally damning in their condemnation of the Obama decision.
Jonathan Hafetz, an attorney with the American Civil Liberties Union, called the military commission system a “failed experiment that must be ended not revived if American justice and the rule of law is to be restored.”
He told us, “There is no legitimate reason for continuing to circumvent the established method of trying terrorism suspects in our ordinary federal courts. No proposed improvements to the military commission system will cure their endemic flaws or their lack of legitimacy in the eyes of the world.”
“After years of working with these bizarre commissions, it is clear to us that they simply do not work,” said Zachary Katznelson, legal director of Reprieve, a UK-based legal charity that represents a number of Guantanamo detainees.
He told us, “As a constitutional lawyer, Obama must know that he can put lipstick on this pig – but it will always be a pig.”
Amnesty International USA researcher Rob Freer said the Military Commission system was “conceived and developed as part of an unlawful detention regime, to facilitate convictions while minimizing judicial scrutiny of the executive’s treatment of detainees.”
“No amount of tinkering with their rules can fix this discredited system,” he said.
Chip Pitts, President of the Board of Directors of the Bill of Rights Defense Committee, told us, “This a terrible day for the rule of law. I have to conclude that political considerations played a major role in this decision. Obama believes he must compromise in order to achieve his larger goals — health care, education and energy independence. But you don’t compromise your basic principles.”
The Center for Constitutional Rights, which has mobilized dozens of pro-bono lawyers to defend Guantanamo detainees, said in a statement, “Today’s announcement is an alarming development for those who expected that the Obama administration would end Bush’s dangerous experiments with our legal system.”
And Elisa Massimino, CEO of Human Rights First, argued that federal courts are capable of handling the cases and warned that “tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions.”
But Obama’s decision was seen as a political win by some observers of Congress and by many conservative Republicans who have worried that Obama was seen as “too soft” on terrorism.
For example, David B. Rivkin Jr., a Washington lawyer who was an official in the Reagan administration, told The New York Times that the decision suggested the Obama administration “was coming to accept the Bush administration’s thesis that terror suspects should be viewed as warriors, not as criminals with all the rights accorded them in American courts.”
In Congress, the Senate Republican leader, Mitch McConnell of Kentucky, an outspoken critic of Obama’s plan to close Guantánamo, called the decision to use the military commissions “an encouraging development.”
Sen. Lindsey Graham, a conservative Republican from South Carolina and a member of the Armed Services Committee, called Obama’s decision a step toward strengthening U.S. detention policies that have been derided worldwide. He said, “I applaud the president’s actions today.”
And Sen. Joe Lieberman, an Independent from Connecticut, also welcomed Obama’s decision. He said, “The president “has reinforced that we are at war, and that the laws of war should apply to these prisoners.”
White House officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases. They also said questions surrounding the brutal treatment of some detainees had become an obstacle.
The Military Commission system was set up after the military began sweeping detainees off the battlefields of Afghanistan in late 2001. It has been the subject of repeated legal challenges from human rights organizations because it denied defendants many of the rights they would be granted in a civilian courtroom. When he was a U.S. Senator, Obama voted against the Military Commissions Act of 2006, which established the current system.
In several landmark decisions, the U.S. Supreme Court has ruled that this system, first established by executive order by former President George W. Bush, was unconstitutional.