Obama to continue military tribunals?

[Kulaf]

http://www.msnbc.msn.com/id/30531510

It would seem so "sources" say.

[Lurker]

From the article...

Still, during the presidential campaign Mr. Obama criticized the commissions, saying that “by any measure our system of trying detainees has been an enormous failure,” and declaring that as president he would “reject the Military Commissions Act.”

The article tries to make it look like Obama has flip-flopped on this issue; that he was against the Military Commissions Act because of the use of Military courts and now he's for it. That's completely wrong.

Obama was against the Military Commissions Act for three reasons. It authorized torture, it kept in place an unfair status review tribunal, and it removed habeas corpus. If those problems had been addressed Obama was in favor of using military courts in some instances. As President he's addressed all of them.

Here's Obama's speech on the Senate floor after the Military Commissions Act was passed.

In the five years that the President's system of military tribunals has existed, not one terrorist has been tried. Not one has been convicted. And in the end, the Supreme Court of the United found the whole thing unconstitutional, which is why we're here today.

We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.


•Instead of allowing this President - or any President - to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

•Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

•And instead of not just suspending, but eliminating, the right of habeas corpus - the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance - one single chance - to ask the government why they are being held and what they are being charged with.

I've heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that.

The problem is that the structure of the military proceedings has been poorly thought through.

Indeed, the regulations that are supposed to be governing administrative hearings for these detainees, which should have been issued months ago, still haven't been issued.

Instead, we have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court.

This is NOT how a serious Administration would approach the problem of terrorism.

So now Obama will show how a serious Administration handles the problem while still protecting our core values. I don't agree with all the decisions he's made, (He should investigate and prosecute the Bush Administration people responsible for implementing torture for example) but in the area of military courts he's been perfectly clear and consistent.

[Ddrak]

Personally I think the idea of military tribunals for these people is stupid. It gives the impression that the US maintains dual standards and will happily change the rules to suit whatever their political situation demands. In the end it makes the US look like a nation that has abandoned the rule of law - no matter what the reality and fairness of these tribunals actually is.

What is the problem, given appropriate security restrictions that exist for other cases involving classified information, of using the US legal system?

Dd

[Torakus]

What is the problem, given appropriate security restrictions that exist for other cases involving classified information, of using the US legal system?

Dd

Except the part that these folks have NO peers to act as jurors, and the likelihood of finding impartial jurors - even if we were smart enough to switch to professional jurors - is slim to none.

There is no question that these folks get a much fairer shake by being judged by a panel of military officers. Those officers are a hell of lot less likely to be swayed by emotion or politics than the average knucklehead juror off the street, and a lot more likely to take the time to review the pertinent legal issue and make a fair judgment based on the law.

Tora

[Ddrak]

The military officers are the same as professional jurors in the case you're presenting - people trained to act fairly. If anything I would think a professional juror may actually be more balanced but only because of the training I'd expect them to have in the specific area of criminal law and evidence that the military shouldn't have to bother with given they have a different justice system. Personally I think the idea of allowing a jury trial for everything is a bit silly, but I understand the rationale for it being a check on the power of the judiciary.

I do agree that it would be difficult to find an impartial jury, but that goes for any largely public crime. Can you imagine an impartial jury for Lee Harvey Oswald had he made it to trial? The jury selection process would be hell, but that's the justice system you have and if it's good enough for Americans, why shouldn't it be good enough for the people that Americans take into their own custody?

What happens in the case of jury trials where classified information is presented? Do you have to vet the jury pool to those with a security clearance? If your only issue is one of jury selection then I wouldn't have so much of an issue with it being a civilian court with a normal judge etc. and a narrowed jury pool to those trusted to listen to the evidence. It's still not perfect but at least it's a civilian proceeding for a civilian case instead of a military one for a civilian case.

Dd

[Torakus]

If it comes down to military vs. civilian trial, I would suggest that a panel of civilian judges would be a much better solution.