Col. Morris Davis - former chief prosecutor for the UNdue process military commissions at Guantanamo - penned a must-read article in Salon. This weekend, accused 9/11 mastermind Khalid Sheikh Mohammed is set to be arraigned a second time at a military commission, and Davis eloquently explains how the decision to try Mohammed before the constitutionally-inferior military commissions.
[Mohammed] went through the same process in the same courtroom on nearly the same charges almost four years ago in the closing months of the Bush administration. The fact that President Obama chooses now, six months before voters choose between him and Mitt Romney, to restart what some have dubbed “the trial of the century,” using a second-rate system of justice he had ordered stopped at a facility he had ordered closed, makes an unflattering statement about the timidity of his leadership and the malleability of his principles.(emphasis added)
Sharply and astutely criticizing apologists for military commissions, Davis also drills down to the heart of the debate, which like so many of the Obama administration's Bush-era-torch-carrying national security policies (rendition, indefinite detention, state secrets, etc.), has everything to do with politics and nothing to do with justice:
This is not about the exigencies of the battlefield and the problems our soldiers face trying to fight a war; this is about torture, coercion, rendition and a decade or more in confinement without an opportunity to confront the evidence – abuses that would have us up in arms if done to an American citizen by some other country – that make the tarnished military commissions uniquely suited to try and accommodate the small category of cases where we crossed over to the dark side.
Col. Davis is not some left-wing anarchist seeking to upend national security. Rather, he is a highly-decorated Air Force attorney who resigned his post as Chief Prosecutor at Guantanamo in protest of political interference from the G.W. Bush administration and the administration's approving the use of evidence obtained through torture. Like too many whistleblowers, Davis' career suffered further. After a quick "retirement" from military, he was fired from the Congressional Research Service after speaking out against the Obama administration's decision to continue the use of military commissions.
Like too many of the Obama administration's national security policies, Obama's campaign rhetoric failed to match his policies in office. Davis articulates the fundamental fallacy of calling the use of military commissions "pragmatic," and the poor example military commissions' set for the rest of the world.
There is nothing pragmatic or principled about undermining America’s reputation as a champion of the rule of law and a supposed model for the world to follow. The apologists for Obama’s decision to embrace military commissions call attention to similarities between the commission rules and the rules in federal courts, and they claim those rules are essentially the same. They argue that the two systems are virtually identical and that trial observers will find trials in the two forums nearly indistinguishable. In some things, however, close is just not good enough. An O’Doul’s looks like a beer and has a beer-like flavor, but a real beer drinker would never argue that an O’Doul’s is virtually indistinguishable from a Sam Adams. Just as a near-beer is not practically the same as a real beer, neither is near-justice the equivalent of real justice. The apologists may think they are fooling the rest of the world when they say at long last military commissions do real justice, but they are wrong.Davis is absolutely correct.
Every first-year law student learns that the U.S. criminal justice system operates under the axiom that it is better to have ten guilty people go free than to convict a single innocent person. The military commissions operate under an completely opposite principle: that a conviction - not matter how unjust - is worth such political weight that it outweighs the Constitution.