[Peace-discuss] More change that isn't
C. G. Estabrook
galliher at illinois.edu
Sat May 9 22:29:00 CDT 2009
Obama To Git-Mo Better Military Tribunals
By: bmaz Saturday May 9, 2009 11:41 am
The GOP squeals and Obama greases their detainee wheel. On May 1st, the New York
Times warned that President Obama was contemplating reinstating the tyrannical
Bush/Cheney military tribunals for Gitmo detainees.
Yes, the same Barack Obama that forcefully pronounced to the American public
during the election:
"By any measure our system of trying detainees has been an enormous failure."
Not to mention declaring that as President he would:
"reject the Military Commissions Act."
That was then, this is now. And now, today, it is seems nearly confirmed that
military commissions will be back. From Peter Finn at the Washington Post:
"The Obama administration is preparing to revive the system of military
commissions established at Guantanamo Bay, Cuba, under new rules that would
offer terrorism suspects greater legal protections, government officials said.
"The rules would block the use of evidence obtained from coercive
interrogations, tighten the admissibility of hearsay testimony and allow
detainees greater freedom to choose their attorneys, said the officials, who
spoke on the condition of anonymity because they were not authorized to speak
publicly...
"Officials said yesterday that the Obama administration will seek a 90-day
extension of the suspension as early as next week. It would subsequently restart
the commissions on American soil, probably at military bases, according to a
lawyer briefed on the plan."
To be clear, the Administration indicates that Obama has not given the final
sign off on the plan, and the ACLU has already sworn to fight any such plan. One
thing is for certain, however, Obama is not contemplating this move in order to
give the detainees so tried the equivalent level of due process and justice that
would be afforded by American courts, else he would simply use American courts
as he stated was his intention while campaigning for votes.
No, you can safely bet that the idea is to use evidence and restrict rights in
order to obtain convictions and severity of sentences that would be less likely
with traditional due process and fundamental fairness. Not that the original
iteration of the tribunals produced particularly good results as a mere three
convictions have been produced out of a known total of 779 detainees since the
inception of Gitmo. One area clearly in play to obtain the desired easier
convictions under Obama's tribunals would be allowance of hearsay evidence:
"Under the administration's rule changes, hearsay evidence would be admissible
if a judge determines it is reliable, officials said. That provision would allow
the government to introduce some intelligence material that would ordinarily be
barred in federal court or military courts martial, the officials said."
Really there are two forces at work here, the desire to make easier the
prosecution of the remaining detainees whose cases are problematic and filled
with pratfalls because of the torture and rendition programs, and the desire to
appease the right wing shrieking howlers that are apoplectic over the thought of
actually trying criminals in American courts. It is easy to see that these twin
forces are making it hard for Obama to stick to the rational morality of his
campaign positions and promises; what is not understandable is why he feels he
must shunt his ideals and promises aside.
First off, the goal of any appropriate prosecution, whether criminal,
quasi-criminal or other, is to provide a fair and just trial with due process,
to protect the innocent and convict the guilty, and to provide a transparent
forum so that the public as a whole can see that justice is being served and
done. That is most definitely not what this plan is about. Although clearly the
Obama Administration has sought to make some improvements around the edges, it
is still nothing but lipstick on the Bush pig. Let's look at some of the problem
areas:
The rules would "block the use of evidence obtained from coercive
interrogations". All evidence from coercive interrogations or just some evidence
from coercive interrogations? Will the ban be on any coerced statements and
fruits thereof, or only those that came from that particular defendant? Will
coerced statements from others be allowed, and if so to what degree? What about
the fruit of coercion? Once you have tortured an individual, how do you not term
any information obtained while he is still detained subsequent to that torture
to not be the product of coercion? The reliance on "clean teams" and/or regular
interrogators subsequent to torture to sanitize the proceedings is a joke. It is
crystal clear that the Obama Administration is desirous of sliding in a lot of
evidence this way, it is why they have fallen back onto the tribunals.
The rules would "tighten the admissibility of hearsay testimony". Well, as
stated above, this is not the case in the least; in fact, the rules are
specifically designed to allow for wide ranging admissibility of hearsay. Again,
that is the whole purpose here. The use of "hearsay" here is going to be
designed to protect sources and means, conceal identities of the agents of
torture and rendition and allow for selective use of classified information
without challenge. In short it is nothing but a scam to deny the defendant the
opportunity to confront and cross-examine his accusers and the evidence
propounded against him; the very principle that is the bedrock of minimal due
process and fundamental fairness.
The rules would "allow detainees greater freedom to choose their attorneys".
You've got to be kidding me. Seriously? What a load of dung. The Obama
Administration has proved themselves every bit as obstreperous in relation to
allowing effective assistance of acceptable counsel to the detainees as the
Bush/Cheney crew was, witness the dogged determination to remove Kuebler in the
Khadr case. How, pray tell, are detainees that have been locked up in the hell
hole of Guantanamo for five plus years, tortured, isolated, feared up, egoed
down, repeatedly told that any lawyer they speak to is an imperial American spy
out to get them etc. going to meaningfully participate in obtaining counsel of
their choice? And that is before you get to the fact that the US government has
extremely narrow acceptability criteria for attorneys that are even able to be
contemplated for participation in the tribunals. Quite frankly, the cynic would
presume that this is simply Orwellian cover for prejudicing detainees by
reshuffling some of the attorneys, military lawyers and JAG types that have
proved to be a remarkable thorn in the side of the American government's plans
for convenient justice. And said cynic would almost certainly be right.
So, to wind this toward a conclusion, this Obama gussied up swine of military
commissions is a pig that ain't gonna fly. It is a patina of change on that
which is not. And it is a sham; because there is no need for it, traditional
criminal courts are situated to handle these matters just fine once you get past
the Republican hysterical shrieking. Traditional courts have handled Zacharias
Moussaoui, Jose Padilla, the Blind Sheik Abdel-Rahman, John Walker Lindh and
numerous others. Criminal courts have the CIPA process to deal with classified
information in a professional and equitable manner. Have there been errors and
problems in some of the cases to date; yes, absolutely, but almost all were the
fault of malicious and unethical prosecutors, not the inability of the system to
handle the matters. Lastly, traditional courts have at least the appearance of
neutrality, a concept that simply is absent in the tribunals run by the American
military out of the Pentagon.
The bottom line is that no matter how you shine it up, military tribunals are
wrong, convey the wrong message to the rest of the world and are nothing but a
lazy dodge by an American government complicit in an eight year litany of
wrongful acts. President Obama should stop the madness right here and now, try
the detainees in a just system for the world to see and start reclaiming the
high ground.
http://emptywheel.firedoglake.com/2009/05/09/obama-to-git-mo-better-military-tribunals/#more-4091
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