Obama’s reversal on military commissions signals a new stage of U.S. lawlessness
Barack Obama’s decision to try terrorist suspects in military commissions rather than civilian courts is a radical departure from 220 years of U.S. jurisprudence, as well as several decades of precedent under international law.
Under Obama’s decision, announced on the same day as his re-election bid, five terrorist suspects who have been held for eight years at Guantanamo Bay without trial will now be granted a day in a court that falls far short of international standards for fair trials.
The decision, which marks a 180-degree reversal from promises Obama made while running for president two and a half years ago, was announced yesterday by Attorney General Eric Holder.
In announcing the reversal, Holder acknowledged that the new policy is a break from earlier promises of shutting down Guantanamo and trying terrorist suspects in federal courts. President Obama could not implement his desired policy, the Attorney General explained, because Congress “has taken one of the most effective counterterrorism tools out of our hands,” namely America’s constitutional system of trial-by-jury.
The new policy being implemented by the administration will admittedly have “serious ramifications” for national security, Holder conceded, but the administration had no choice: its hands were tied by Congress.
The ACLU points out that in his explanation Holder essentially agreed with human rights groups that terrorist suspects should be tried in a system that has a proven record of successfully completing terrorism cases while protecting sensitive national security information and upholding the rule of law. In his statement, Holder said:
The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system. Our national security demands that we continue to prosecute terrorists in federal court, and we will do so. Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.
Nevertheless, the U.S. has no choice but to abandon its judicial system in trying terrorists, Holder asserted. Human rights groups and legal advocates disagree, raising strenuous objections to the new policy and criticizing the Obama administration for abandoning its earlier pledges.
In response to this decision, Amnesty International said yesterday:
The announcement that the USA will again resort to military tribunals to try individuals accused of terrorism, when civilian courts could clearly be used, is a betrayal of international fair trial standards. It will send a signal to other governments that the USA is willing to ignore human rights standards when it finds them inconvenient, making this a victory only for the politics of fear.
Human Rights Watch pointed out:
The military commissions at Guantanamo have been marred by procedural irregularities, the use of evidence obtained by coercion, inconsistent application of ever-changing rules of evidence, inadequate defense resources, poor translation, and lack of public access. Although the Military Commissions Act of 2009 made significant improvements over the Bush administration’s system, the law still departs in fundamental ways from fair trial procedures used in US federal courts and under international law binding on the United States.
The Center for Constitutional Rights says that Obama’s decision to bypass constitutional courts
sets a bad precedent, as shown by Egypt’s apparent plans to use military trials for protesters at Tahir Square. In the same breath that the U.S. is calling for the rule of law in the Middle East, it is subverting it at home. The decision to abandon criminal prosecution of the 9/11 defendants in favor of a military commission undermines the prosecutorial discretion of the Justice Department and the independence of the judiciary.
Human Rights First pointed out that,
In his first presidential campaign, President Obama stressed the importance of closing the notorious Guantanamo Bay prison and pledged in his first days of office to follow through on that promise. Now, more than two years later, we’re seeing him backtrack, in announcing that we will not have legitimate, reliable trials in the United States for the alleged perpetrators of the most heinous terrorist attack on U.S. soil in our history. The only thing that has changed is the politics. Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.
As the ACLU put it, “the decision to try the cases in a broken and deficient system is nothing short of devastating for the rule of law.”