Here's what candidate Barack Obama said in June, 2008, in response to a Supreme Court decision in Boumediene et al v. Bush, granting foreign terrorism suspects at Guantánamo Bay a right to challenge their detention in civilian courts, striking a blow against military commissions.
Mr. Obama issued a statement calling the decision "a rejection of the Bush administration’s attempt to create a legal black hole at Guantánamo" that he said was "yet another failed policy supported by John McCain."
"This is an important step," he said of the ruling, "toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy."
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Mr. Obama, who opposed the [Military Commissions Act], said Thursday, "I voted against the Military Commissions Act because its sloppiness would inevitably lead to the court, once again, rejecting the administration’s extreme legal position."
President Obama is now, apparently, considering renewing the military commissions he so roundly criticized as a candidate, and which he suspended in one of his first acts as President. His administration has apparently floated the idea of reconstituting the "trials" with members of Congress, "weighing plans to detain some terror suspects on U.S. soil -- indefinitely and without trial -- as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba."
At The Washington Independent, Daphne Eviatar compiles the list of ongoing actions by the Obama administration that point to a continuation of the flawed military panels.
[T]he commissions were never completely dismantled, and, in fact, continued despite the administration’s suspension of the trials. In the case of Ali Hamza Ahmed Sulayman al Bahlul, for example, an alleged al-Qaeda media director who was convicted and sentenced to life in prison by a military commission in November after he boycotted the trial and refused to present a defense, the government is now seeking to "finalize and approve his conviction and sentence," said David Frakt, his military defense lawyer. The commission’s "convening authority" can either approve the conviction and sentence, or can amend it or grant clemency. "It’s interesting that they continued to press forward despite the suspension," said Frakt.
Then last week, The Miami Herald reported the appointment of a new chief prosecutor, John Murphy, also suggesting the Obama administration plans to continue the commissions....
Pentagon spokesman Commander Jeffrey Gordon would not confirm or deny the report about Murphy’s appointment, or about whether the military commissions will be revived.
But there are other suggestions that they will go on. On Thursday, a military judge ordered that a hearing in the military commission case of Ahmed Darbi, accused of being a member of Al Qaeda in large part because his brother-in-law was one of the 9/11 hijackers, will go forward as originally scheduled on May 27. Darbi’s lawyers had asked for the hearing to be delayed until July to give the Obama administration time to decide how to proceed with his case, which they claim is unfounded. Darbi says he was tortured at the Bagram air base in Afghanistan, and witnessed the beating to death of a Bagram detainee whose murder by interrogators was later confirmed in a Defense Department report.
On Tuesday, Darbi’s lawyer confirmed that the hearing has been set for May 27, though he cautioned that this was the decision of the judge handling the case, not of policymakers in the Obama administration.
"The president has the authority to pull the plug on this," said Ramzi Kassem, Darbi’s lawyer and a teaching fellow at Yale Law School. "Our position has always been that even with a very fair military judge and with highly intelligent and impartial military jurors, the military commission system is rigged and cannot be fair to the accused."
The primary objections of lawyers like Kassem are that the Military Commissions Act allows for the introduction of evidence obtained by abusive interrogations; for arguments and evidence presented by prosecutors secretly to the judge without the involvement of the suspect or his lawyers; and multiple layers of hearsay – essentially, rumor – none of which would be admissible in either civilian federal courts or in military courts martial, which follow the Uniform Rules of Military Justice....
"No one should be tried in these courts," says Kassem. "They were set up for one reason alone: to whitewash torture."
The judicial mess left by the Bush administration at Guantanamo cannot be denied, and resolving it is going to be complex. But it's not more complex than our regular legal system is capable of handling. The symbol of Guantanamo is intrinsically tied to the symbol of these kangaroo courts. They are, as Philip Zelikow testified today "in world pulblic opinion, a toxic problem for the United State of America." Here's Zelikow, speaking directly to closing Guantanamo.
Ending the military commissions and proceeding with these cases in a valid legal system is just as critical as closing Guantanamo to resolving that toxic problem.