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If Military Commissions Are So Great, Why Only 3 in 8 Years?
To hear the clamor for prosecuting Abdulmutallab, Khalid Sheikh Mohammed, and his alleged 9/11 co-conspirators by military commission, you might think commissions are better, cheaper, faster, and more appropriate than federal court trials and a sure-fire way to get stiff convictions.
The Supreme Court didn't think so when it ruled in 2006 that the Bush administration's plan for Military Commissions was unconstitutional. In 2007, the high court found Congress's legislative fix of the commissions also to be unconstitutional. After that second smack-down, Boumediene v. Bush, Congress enacted the Military Commissions Act of 2009, which has not yet been tried out. Furthermore, those convicted by military commission are entitled to appeal their convictions, and Ali Hamza al-Bahlul is doing that right now.
Of the three men tried and convicted by military commission since President Bush signed a November 2001 executive order establishing commissions, al-Bahlul is the only man to have received a sentence longer than 9 months. The other two, David Hicks and Salim Ahmed Hamdan (Osama bin Laden's driver), were sentenced to nine months and five months, respectively, after time served, and are now home with their families.
No one from either major party objected to the cost of civilian trials for shoe-bomber Richard Reid, so-called "19th hijacker" Zacarias Moussaoui, Jose Padilla, "millennium bomber" Ahmed Ressam, and nearly 200 other terrorism suspects tried in civilian court during the Bush years. It's possible that military commissions could be cheaper than civilian trials, provided you pile everything you can think of into the budget for civilian trials.
For example, in January, New York City Police Commissioner Raymond Kelly prepared a billion-dollar security budget ($200 million a year for five years) for trying five alleged 9/11 co-conspirators in federal court in lower Manhattan. Kelly's budget includes 2,000 metal barriers to restrict pedestrian and vehicle access to two apartment complexes, sharpshooters on rooftops in case of an attack by enemy snipers, police helicopters constantly in the air overhead, and canine and human assault teams patrolling the ground below.
Judge John Coughenour, who presided over the Ressam trial, was startled by those security cost estimates. He said, "There was virtually no expenditure of funds by the local police in Los Angeles regarding the Ressam trial, and the marshalls tell me that their expenses could be measured in the thousands of dollars.... The LA police department did virtually nothing to enhance security surrounding the courthouse in Los Angeles, and we had no problems regarding the trial."
The fact that federal trials are tested and universally respected as fair, with a well-established track-record for convicting terrorism suspects, has not won over people who want military commissions for several ignoble reasons, such as the desire to use the trial itself for vindication, prejudice that justifies lesser justice, including denying the presumption of innocence until proven guilty, or fear that a fair trial might not produce a conviction. Others have political motivations that require fancy footwork from time to time, as former House Speaker Newt Gingrich displayed on the Daily Show when he explained to host Jon Stewart that Richard Reid was mirandized because he is a U.S. citizen (He's actually British.), whereas the Obama administration was wrong to mirandize Abdulmatallab.
But some vocal critics of federal trials may have a darker reason for demanding military commissions. Charles Swift, Lieutenant Commander (retired) of the U.S. Navy Judge Advocate General's (JAG) Corp, named that reason when he represented Hamdan. He eventually took his client's case to the U.S. Supreme Court--and won.
"The whole purpose of setting up Guantánamo Bay is for torture. Why do this? Because you want to escape the rule of law.... Guantánamo and the military commissions are implements for breaking the law."
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8 Comments so far
Show AllThe last paragraph in Talanian's piece really nails it, in relatively few words. (Was she quoting Charles Swift?)
Republicans and conservatives who support military commissions and Guantanamo are betraying their (supposed) fundamental principle of conserving and respecting the law and the Constitution. Instead, they have opted for opportunism and expediency.
As someone once said, "Expedience is the argument of tyrants."
Jim Shea
-"federal trials are tested and universally respected as fair, with a well-established track-record "
One point that Americans invariably miss is that even though their federal courts are the best they've got, they still will not be sufficient to give fair trials to these accused.
Holding the trials now, ten years after the prisoner has been repeatedly tortured, after years of solitary confinement, after years of human rights violations, after thousands of hours of the prisoner being demonized by the government in the mass-media....
Holding, a trial now, as if none of that happened, as if the prisoner was taken into custody yesterday, is, of course, a joke.
Left unsaid at the court will be all the hours of torture, drugging and death threats. Left unsaid will be Obama's promise to kill the defendant or hold the defendant indefinitely, even if he is found not guilty. This makes any attempt at a trial, a farce.
Quite right, jlocke123.
Critics and opponents of military commissions and other kangaroo-court inventions to adjudicate crimes related to alleged terrorism obviously feel constrained to argue that the existing "justice system" can achieve justice.
Even Glenn Greenwald, whom I generally respect and admire, occasionally points to the shabby string of "pig-circus" trials cited in the article-- as if they're not all travesties of justice in their own way. Unlike, say, Scott Horton and Chris Floyd, Greenwald strikes me as too ready to accept that "the rule of law" prevails if due process is even superficially followed, regardless of the corruption of such "due" process.
The panic, hysteria, and savage violence of "mob rule" fomented and encouraged by the post-9/11 nakedly authoritarian Amerikan government has backed up and seeped into all levels of authority. Thus, there are no heroic grown-ups left standing to responsibly and reliably administer the justice system.
I have commented repeatedly about a minor, passing moment that I regard as a shockingly telling revelation of this point. It happened during Obama's announcement that the Khalid Sheikh Mohammed trial would be held in New York City-- a decision that itself has since come under fire from the likes of troglodytic reactionary wingnut Congressman Peter King and like-mindlessed full-mooners.
I won't bother Googling for details, or a YouTube reference, but IIRC, an ABC reporter asked Obama how he could "guarantee" to the Amerikan People that KSM would not be acquitted!
Regardless of the controversy and hysteria enveloping the issue, and regardless of Obama's determination not to put a foot wrong (i.e., in his mouth), there is simply no way a sane, reasonable President of the United States should answer that question without first addressing the execrable ignorance of civics and due process in which it is embedded.
Even if Obama intended to tapdance his way around the question, the least he could have done was attempt a "teaching moment" in which he EMPHATICALLY pointed out to the reporter that ANY trial with a "guaranteed" outcome is what is called a "show trial"-- and We Don't Do That Here.
Instead, Obama unhesitatingly accepted the offensively stupid question at face value, and bloviated his confidence that the trial would reach the "right" verdict. It was abominable. It was reprehensible.
Of course, Obama also made similar "Judge Roy Bean" statements about the Fort Hood shooter-- almost literally, and without irony, placating those of the lynch-mob persuasion with assurances that Hasan will get the fairest trial in the world before we hang him. And, as you note, Obama hedges this blatantly prejudicial stance by further hints that the government is prepared to imprison "terrorist" defendants REGARDLESS of the verdict!
Again: abominable; reprehensible. And needless to say, I'm not impressed by the disclaimer that it is the Attorney General, not the President, who is the chief law enforcement officer in the land. Even if Holder were the bestest Good Cop ever, pure and resolute (which he isn't), this circumstance does not excuse a chief executive who coolly flings down and dances upon his oath of office in order to pacify and mollify a hysterical mob.
It would seem as if public figures opposing military commissions are unable or unwilling to express this opposition without touting, or at least tacitly endorsing, our dubious NORMAL mechanisms for dispensing injustice.
This affirmation of "good enough for government work" jurisprudence is another example of Team Obama's vaunted pragmatism of expediency in action, and it's unfortunate that those justly opposed to trial by special commission feel compelled to credit an already degenerate and corrupt status quo when expressing otherwise appropriate opposition.
· Yr Obd't Servant
FWIW, Jill, Jane Mayer is a talented investigative reporter but she's a sucker for the typical moderate's working delusion that by and large, our Elected Misrepresentatives and appointed officials are good-hearted, well-intended, and honest.
I'm sure you've encountered the idiomatic expression, "I just can't believe that...", as in "I just can't believe that a government would attack its own citizens" or somesuch. Likewise, IMO Jane Mayer "just can't believe" that Team Obama is other than a dedicated, hyper-qualified, ethical group sincerely doing its best in a very, very tough situation.
Months ago, I was put off by Mayer during a "Democracy Now" appearance, IIRC, in which she connected lots of preliminary damning dots regarding Team Obama's approach toward Bush-legacy legal outrages, but refused to draw an obvious negative inference.
Instead, annoyingly, in the face of a ton of her own inconvenient facts, she attempted to rationalize Team Obama's condoning, freely continuing, and even expanding the worst of the preceding maladministration's policies and procedures.
Mayer reminded me of Michael Moore during his interviews in that same venue and elsewhere, more or less insisting that despite appearances, Team Obama is more to be pitied than censured-- its principals may LOOK like villains, but they're actually heroes mired in a desperate situation not of their making.
Mayer may be diligent and courageous, but IMO she's in occupational denial. Yes, it's a testament to the power of the propaganda-- but also to the weakness of contemporary journalism breeding sycophants instead of skeptics.
· Yr Obd't Servant