Obama Says He Will Keep Military Commissions

Pres. Obama says he wants to look to the future, not to the past. But how can we do that when he insists on continuing so many Bush-era policies?

President Obama has decided to keep the military commission system that his predecessor created to try suspected terrorists but will ask Congress to expand the rights of defendants to contest the charges against them, officials briefed on the plan said Thursday.

Mr. Obama will ask for an additional 120-day delay in nine pending hearings before commissions so the administration can revamp the procedures to provide more due process to detainees, the officials said. The new system would limit the use of hearsay, ban evidence gained from cruel treatment, give defendants more latitude to pick their own lawyers and provide more protection if they do not testify.

Spencer Ackerman asks a good question:

But then why continue the commissions at all? Isn’t the point of the commissions to restrict process, and allow a lower evidentiary standard, in order to obtain a conviction that might be somewhat harder to obtain in a civilian court?

It’s still a lower standard, though, even with those reforms — and that is indeed the point:

The government will try some Guantanamo detainees in federal courts, anonymous officials tell The Los Angeles Times, but administration officials “have concluded that some detainees can only be tried in military tribunals.”

As I wrote earlier this week, the only real reason for that is the desire to introduce evidence against the detainees that could not hold up in a federal court because it’s typically not reliable. That is, because it’s hearsay (or double or triple hearsay, as much of the evidence gathered by the CIA is); or because it was coerced from either the detainee himself, or from others subjected to coercive interrogations. …

Jonathan Turley calls Obama “Bush 2.0“:

… [The tribunals decision] follows Obama’s adoption of an even more extreme theory of executive privilege in court, the reversal of the decision to comply with a court order and turn over abuse photographs, the continuing effort to extinguish dozens of public interest lawsuits on privacy violations, and the proposed adoption of the Bush policy of holding detainees indefinitely without trial, here. In the meantime, he and Attorney General Eric Holder continue to block the appointment of a special prosecutor despite mounting evidence of war crimes committed by the prior administration. …

Glenn Greenwald gets to the heart of the problem with the decision to keep the tribunals, even with increased protections added in (emphasis is Glenn’s):

Let’s concede that if the U.S. is going to continue to try accused terrorists in newly-created military commissions — rather than under our normal, long-standing system of justice — then it is better to have more safeguards than fewer.  That’s just true by definition.  Let’s further concede that many of the past criticisms voiced about Bush’s military commissions, including some of Obama’s criticisms, focused on the specific rules of those commissions, some of which (though far from all) are addressed by Obama’s modifications, including the most important change that coerced statements are no longer admissible.  Nonetheless, the overwhelming bulk of the objections to what the Bush administration did was to the very idea of military commission themselves. The controversy — one of the most intense of the Bush era — was grounded in the argument that there was absolutely no reason, other than to pervert justice and enable easy and due-process-free convictions, to create a separate tribunal rather than use our extant judicial processes.

And now the world will be associating that taint with the Obama administration.