Saturday, May 16, 2009

Another Disappointment

President Obama has done another 180 on a campaign promise: he has decided to reinstitute the military commissions for trying the Guantanamo detainees. His excuse for doing so is that he has added protections more in line with civilian rules, but the tinkering is just cosmetic in the long run.

From the NY Times:

The Obama administration’s proposed changes would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment and give defendants more latitude to pick their own lawyers. Cases against 13 detainees were suspended in January. The administration said Friday it would seek to extend the suspension another four months. ...

The added rights proposed by the administration still fall far short of the protections provided defendants in federal court, lawyers said, predicting that the administration would encounter vigorous new legal challenges that could end up in the Supreme Court.

The first objectionable feature of the new-and-improved system is the further delay in any kind of proceedings. More than five months have passed since the initial suspension and now another four month suspension is being contemplated so that the new rules can be written, refined, and implemented. By the time all of this is done, the detainees subject to the military tribunals will have lost another year of their lives.

The second and more important objectionable feature is the fact that the changes being proposed only slightly enhance the chances of the defendants at trial. Not all hearsay evidence is being excluded, only some. In civilian criminal trials, hearsay evidence is allowed in only under the most stringent of rules, such as the death of the original speaker and then only with collaborative evidence. The purpose for such exclusion is to entitle the defendant to confront his accusers, to cross-examine them, to challenge their credibility.

It doesn't take a psychic to predict that the government will rely on such devices as the "state secret" tool to get much of the hearsay in, thereby depriving the defendant of his right to cross-examination. Not only will the speaker be made unavailable, his very identity will be hidden.

The whole point of these military commissions as conceived by the Bush White House was to ensure convictions, to give the prosecutors the easiest slam dunks of their careers. Apparently President Obama has bought into this theory, only he wants to package it a little differently. The primary targets, those detainees accused of plotting the 9/11 attack, must be convicted at all costs so that we can have our revenge. It's the justice of the Old West: catch'em, try'em, and then hang'em.

Even the White House press secretary had to strain at a reason for supporting the president's decision:

The White House press secretary, Robert Gibbs, objected when reporters suggested that the president was planning to use the Bush administration’s system for prosecuting terror suspects. Mr. Gibbs said it was more like buying a used car but “changing the engine and painting it a different color.”

Yeah, yeah, Mr. Gibbs. The problem is that the rest of the drive train, including the transmission, is deeply flawed, and the brakes never worked. It's still a lemon.

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Anonymous Magnetic Cash Gifting said...

2 shockers in about as many days. First the refusal to release the terror photos and now this.

Extreme individuals need to be brought to justice by any means necessary. The freedom which is afforded to all law-abiding citizens is a product of doing what might not be popular but what is right for the U.S. and its interests. If the ACLU attorneys always had their way we would live in anarchy. A nation of people with their own individually-decreed laws.

Congrats Mr. President. You went 2 for 2 this week :)


6:33 AM  

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