Monday, May 18, 2009

Obama's Decision to Revive Military Tribunals Proves He Really IS Governing From the Center

President's Decision Has, Not Surprisingly, Infuriated Many of His Liberal Supporters, But it Has Also Undermined Claims by His Conservative Critics That Obama is a 'Radical Socialist' Taking the Country Far to the Left; New Rules Restore Habeas Corpus Rights of Detainees, But Constitutionality of the Tribunals Themselves Remains an Open Question

When President Obama announced in January that he had ordered the closure of the Guantanamo Bay detention camp (viewed from space in satellite photo, above) and a 120-day suspension of his predecessor's military tribunals to prosecute the more than 240 remaining terrorism suspects held there, his conservative critics immediately accused him of weakening national security. Now some of the president's liberal supporters are crying "Betrayal!" at him for his decision to revive the tribunals for 13 of the detainees -- under new rules restoring the habeas corpus rights of the detainees that former President George W. Bush steadfastly denied them despite three Supreme Court rulings that Bush's policy was unconstitutional. (Images courtesy NASA and ABC News)

(Posted 5:00 a.m. EDT Monday, May 18, 2009)


When Barack Obama ran for the presidency, he was a sharp critic of the Bush administration's policies toward the treatment of terrorism suspects at the Guantanamo Bay detention camp in Cuba and other top-secret, so-called "black sites" operated by the CIA elsewhere around the world.

He was also highly critical of the system of military tribunals established under Bush.

When the Supreme Court ruled last June -- for the third time since 2005 -- that the detainees at Guantanamo Bay had a right under the U.S. Constitution's guarantee of habeas corpus to go to federal court to challenge their continued detention, then-candidate Obama hailed the decision as "a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo" and "an important step toward re-establishing our credibility as a nation committed to the rule of law."

The then-senator from Illinois added that the high court's ruling rejected "a false choice" between fighting terrorism and respecting habeas corpus. "Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy," he said.

Now, almost a year after the high court's ruling, Obama is president. The CIA's "black sites" have been shut down. And although he has ordered the closing of the Guantanamo Bay detention camp by the end of the year -- and is likely to have the bulk of the approximately 240 detainees still held there transferred to U.S. soil and dealt with through the U.S. court system -- just over a dozen of them will be prosecuted under the highly controversial system of military tribunals that Bush established.


The revived tribunals, however, will operate under new rules that restore the detainees' right of habeas corpus and other legal protections. "This is the best way to protect our country, while upholding our deeply held values," Obama said in a three-paragraph statement.

The new tribunals will apply only to about 13 of the detainees whose cases were already under way -- including several suspects in the September 11, 2001, terrorist attacks in New York and Washington that killed over 3,000 people. Most prominent among them is Khalid Sheik Muhammad, who is accused of being the mastermind behind the attacks.

The proceedings are expected to resume next fall, to allow time for the new rules to be put in place.

White House press secretary Robert Gibbs said Friday that the new tribunals "represent a far different system" than the earlier commissions under the Bush administration and are designed to provide detainees better protections in court than the earlier commissions.

Among the new rules:

# tight restrictions on hearsay evidence,

# a total ban on the introduction of any evidence collected through torture or abuse,

# detainees now have the right to change their military lawyers,

# detainees may refuse to testify if they so choose without incurring additional sanctions.


It remains unclear, however, whether the new commission proceedings will take place at Guantanamo Bay -- where there are facilities already in place -- or on the U.S. mainland. It's uncertain whether new facilities on the mainland would be ready in time for the proceedings to begin next fall -- let alone whether they would be ready in time for the final shutdown of the detention camp in January.

Nor does the impending revival of the tribunals for the 13 cases already in progress resolve the problem of what to do with other 227 Guantanamo detainees whose cases have yet to be processed. Administration officials say the other detainees could be brought to the mainland, but that move is vehemently opposed by conservatives.

The detainees could be transported to other countries, but that possibility is fraught with political and well as logistical problems. For one thing, it remains to be seen how many countries would be willing to accept the detainees, although France accepted an Algerian from Guantanamo Bay last week.

Some of the detainees could end up being held by the U.S. indefinitely -- which would outrage human-rights groups and likely trigger a new round of litigation.


The president's decision has, not surprisingly, infuriated many of his supporters on the liberal side of the political spectrum, some of whom have denounced the president's decision as a "surrender to the same irrational fear that brought disrepute upon the prior administration," in the words of one critic.

But it also robs Obama's critics on the conservative side of the spectrum of one of their most persistent talking points: That the president is a "radical socialist" who would govern from the far left.

Since taking office in January, Obama has made decisions that have infuriated the right again and again. Now he's made a decision that has infuriated the left.

And it's almost a certainty that there will be more decisions made by this president in the future that will disappoint, even outrage, those on both the left and the right, proving that Obama is truly governing from the center.

Indeed, reaction to the president's decision was decidedly mixed but, predictably, fell on left-right lines.

Elisa Massimino, executive director of Human Rights First, was furious. "Tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions," she said. "The president should listen to the many dedicated military lawyers who both defended and prosecuted cases in the commissions at Guantanamo who have said that the commissions are irredeemable. We cannot achieve justice by reverse engineering a process to enhance the likelihood of convictions."

Also angry with Obama's decision was Virginia Sloan, president of the Constitution Project. "It is troubling that President Obama has apparently chosen to revive the flawed military commissions he rightly denounced during his campaign," she said. "Military commissions are designed to provide lesser due process protections for terrorism suspects than our federal courts do . . . President Obama should have demonstrated a return to the rule of law by ending the tainted military commission proceedings."

On the other hand, some of Obama's harshest critics on the right praised the president's decision.

Senate Republican Leader Mitch McConnell (R-Kentucky) said he would review the president's new rules, but said that "his willingness to return to the bipartisan approach of military commissions for trying detainees now held in Guantanamo Bay is encouraging." He urged Obama, however, not to move the tribunals to the U.S. mainland. "Given the disruption and potential dangers caused by bringing terror suspects into American communities, the secure, modern courtroom at Guantanamo Bay is the appropriate place for commission proceedings," said McConnell.

Senator Joe Lieberman (I-Connecticut), a former-Democrat-turned-independent who campaigned for Obama's Republican opponent, fellow Senator John McCain (R-Arizona) and who was harshly critical of Obama's foreign-policy credentials on the campaign trail, also hailed the president's decision. "I am very pleased that the president has decided that the military commissions are the proper forum to try prisoners captured on the battlefield in the war against those who attacked America," he said. "By taking this action, President Obama has reinforced that we are at war, and that the laws of war should apply to these prisoners."

The reactions of the uber-partisan poobahs of right-wing talk radio won't be known, however, until later today (Monday), since the formal White House announcement of Obama's decision wasn't made until late Friday afternoon, after the most loudmouthed of the talk-show hosts -- Glenn Beck, Rush Limbaugh, Sean Hannity, et al. -- had already gone off the air for the weekend.


Opinions among those who know best how the military operates -- those who served in it -- were no less divided than those of civilians.

In a letter to the president, retired Navy Vice Admirals Lee Gunn and John Hutson, along with retired Army Brigadier General James Cullen, voiced their opposition to the revival of the commissions. "According to the Army's 2006 Counterinsurgency Manual, we must demonstrate an unequivocal commitment to upholding the rule of law and basic principles of human rights," the retired officers wrote. "We urge you not to make a costly step in the opposition direction by reinstating military commissions at Guantanamo or embracing a policy of prolonged detention without trial."

On the other hand, retired Navy Commander Kirk Lippold, who saw 17 of his crew members aboard the USS Cole perish in an al-Qaida attack on the vessel off the coast of Yemen in 2000, was harshly critical of Obama's decision to extend for another 120 days the suspension of proceedings against Guantanamo detainee Abd el Rahim al-Nashiri -- the alleged mastermind of the attack on the Cole -- and demanded that the al-Nashiri case tribunals be restarted immediately.

"The families of the USS Cole have waited nine years to see . . . al-Nashiri tried for his crimes and now must unnecessarily continue to wait," said Lippold, who is now a senior military fellow with the lobbying group Military Families United. "The president must immediately reinstate the military commission process at 'Gitmo' and needs to begin holding [all] these terrorists accountable for their actions."


Contrary to the assertions of the president's critics on both the left and the right, never once on the campaign trail did Obama -- a former professor of constitutional law at the University of Chicago -- say that the military commissions, in and of themselves, were unconstitutional; only that the Bush administration's rules barring judicial review of the commissions' proceedings and the denial of habeas corpus rights to the detainees were unconstitutional.

Neither did the Supreme Court, when the justices ruled on the constitutionality of the detainees' prosecution. The court was never asked to decide whether the military commissions violated the constitutional separation of powers between the executive and judicial branches.

The question of whether the commissions themselves are constitutional or not remains unanswered. Some human rights activists and legal scholars say it is unclear whether the legal and constitutional problems that plagued the commissions under Bush have been resolved under Obama's new rules.

But that's what the American Civil Liberties Union intends to find out. It still insists that only the federal courts have the constitutional authority to handle the detainees' cases, and that despite the new rules restoring habeas corpus, it intends to launch new litigation to strike down the commissions as unconstitutional.

In a statement released last Wednesday, ACLU Executive Director Anthony Romero said that any plan by the Obama administration to resuscitate the Guantanamo military commissions and ship the detainees onto American soil "is fatally flawed."

Romero insisted that the military commissions "are built on unconstitutional premises and designed to ensure convictions, not provide fair trials," and promised that the ACLU would litigate to force the administration to prosecute the detainees in the federal courts.

"Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable," he said. "There is no such thing as 'due process light.' Our justice system depends upon basic principles of fairness and transparency and once they are compromised even a little, they are rendered meaningless."


The Supreme Court's ruling last June in Boumediene v. Bush that overruled the Bush administration on its handling of the Guantanamo detainees -- its third since 2004 -- declared unconstitutional a provision of the Military Commissions Act of 2006 that stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.

Writing for the court's 5-4 majority, Justice Anthony Kennedy said the review procedure provided by a previous law, the Detainee Treatment Act of 2005, "falls short of being a constitutionally adequate substitute" because it failed to offer "the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times.

But the high court's ruling left some other important questions unanswered -- which is likely to lead to further litigation lasting months and even years into the future. There remains some 200 habeas corpus petitions awaiting action in the U.S. District Court in Washington, including those filed by the 37 detainees whose appeals were before the Supreme Court.

Nevertheless, the ruling was a firm rejection of the Bush administration’s legal basis for its handling of terror suspects following the 9/11 attacks -- namely that the U.S. naval base at Guantanamo Bay was beyond the jurisdiction of the domestic courts because it is located in Cuba.

But the Supreme Court reaffirmed, for the second time, its 2004 decision in Rasul v. Bush that because the long-term lease with Cuba gave the United States exclusive sovereignty over the property, the base is de facto U.S. territory and thus falls within the statutory jurisdiction of the federal courts to hear habeas corpus petitions.

An angry Bush -- stung by being rebuffed by the high court for the third time in four years -- made no secret of his unhappiness with the decision. "We’ll abide by the court’s decision," he told reporters while on a state visit to Italy. But he made it clear "that doesn’t mean I have to agree with it."

Implicit in Bush's comment was his determination not to be restrained by the courts in his pursuit of the "war on terror" -- a determination he maintained until the final days of his presidency.

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Volume IV, Number 39
Copyright 2009, Skeeter Sanders. All rights reserved.


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