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Oh Daphne. Oh Bmaz. How right you were. How wrong this post was. Julian Barnes at the Los Angeles Times reports:
The Obama administration will announce Friday that it will continue to use military commissions to prosecute some terrorism suspects, current and former officials said — reversing a campaign promise to abolish the controversial tribunals started under President George W. Bush.
Apparently the commissions will allow for more process, like "ban[ning] the use of any evidence obtained through coercion and restrict[ing] the use of hearsay evidence." 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? And is it really the case that a federal judge would just let, say, Ramzi bin al-Shibh walk?
Crossposted to The Streak.
Update: Here’s Obama’s statement:
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. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time. Indeed, the system of Military Commissions at Guantanamo Bay had only succeeded in prosecuting three suspected terrorists in more than seven years.
Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings. We will seek more time to allow us time to reform the military commission process. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.
These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law. In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values.
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Just to be clear, Senator Obama was in favor of military commissions, but certainly not the kangaroo courts the Bush folks manufactured.
See Jake Tapper on Obama’s position, with links to what was going on when Obama voted against the legislation.
The Bush Admin fouled up every step of the detainment process — not just torture but every other step such as right to counsel, right to know charges against them etc — so I think it’s a bit disingenuous for people to claim that there’s no difficulty sending them to civilian courts.
Of course, now it’s up to the Obama Admin to demonstrate that these courts can work the way they should have from the outset, and that they aren’t irrevocably tainted.
I still find it easier to believe that Obama’s primary concern is forestalling an insurrection/coup than to believe he’s just another lyin’ politician, but it’s getting harder and harder.
Thank you for making this widely misunderstood point.
Okay, so if there’s some tainted evidence we can’t use in Obama’s reformed military commission, and the commission has no other evidence to convict a detainee, does that mean we have to let the detainee go? If not, then I can’t see the point of this.
I totally buy that there are going to be guys we don’t have sufficient evidence to convict but are too dangerous to let go free. The only solution consistent with the rule of law is to convict those who can be convicted in the regular court system and keep the rest who need to be kept as POWs.