Guantánamo Lives: Military Commissions Are Fashionable Again

by Pejman Yousefzadeh on May 3, 2009

Much was made during the Bush Administration over the supposed illegality of military commissions used at Guantánamo Bay. During the 2008 campaign, Senator Obama promised to close down the prison at Guantánamo and the commissions associated with it, and have the detainees there tried in civilian courts.

These campaign promises notwithstanding, this really should have been accepted:

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.

Continuing the military commissions in any form would probably prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system.

If the subject matter were not so serious, this sudden about-face on the part of the Obama Administration would be nothing short of hysterical. It seems, at long last, that the Administration has figured out what its predecessor Administration seemed to know from the outset:

Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

[. . .]

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

You don’t say. So, in other words, the Bush Administration’s claims were . . . correct, right?

To be sure, the Administration appears set to change some of the rules of evidence associated with the military commissions, including the hearsay rule and the admissibility of evidence gotten through coercion. We can certainly have ourselves a reasoned and reasonable debate over that issue, but no aspect of the upcoming debate should disguise the fact that the Obama Administration has now adopted the Bush Administration’s policy concerning military commissions and their use as adjudicatory tools.

It’s the right decision. Too bad that Barack Obama had to grandstand against it–along with his party–for so many years, before reality was recognized.

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