In January, Obama ordered a stop to military tribunals pending his review on how to proceed with them. Last week, he decided to keep the tribunals after all, while implementing several changes to "restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law".
Several people on TPM took Obama's statement (as any other statement he makes) on tribunals at face value. But the truth is Obama flip-flopped on his campaign positions and attempted some remarkable window-dressing to cover it up.
1. When Obama voted against the Military Tribunal Act of 2006, he offered the following reasons explaining his vote:
- power to determine what constitutes torture was left with a president, not Geneva Convention
- Combatant Status Review Tribunal doesn't separate innocent "accidental" detainees from all others
- elimination, instead of just a suspension, of habeas corpus
2. In 2008, the Supreme Court declared unconstitutional a provision in the MCA, and so
ruled that the detainees can challenge their designation as "enemy combatant" by Combatant Status Review Tribunal (CSRT) in federal courts.
Obama proclaimed it, naturally, "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."
3. During the election season, Obama continued to insist that:
- habeas corpus should be restored to detainees
- Gitmo should be closed
- detainees should be tried in US criminal court or by the military court-marshall
- the process was too slow and inefficient
4. But that was all during the heat of pragmatism of the campaign season.
When Obama actually concluded his review of the anti-constitutional and internationally-illegal military tribunals last week, he decided he would continue the Bush policy after all.
And, get this!, he claimed that he actually liked the commissions all along, except for a couple of details:
- evidence obtained under cruel inhuman interrogation methods will not be admissible
- use of hearsay will be limited, shifting the burden of proof
- accused will have greater lattitude in choosing legal counsel
- basic protections to those who refuse to testify
- judges may establish jurisdiction over their own courts
5. With the exception of the choice of legal counsel, all the other points in Obama's statement are pure spin and window-dressing:
- Admission of evidence resulting under torture:
It's already inadmissible under the Military Tribunals Act of 2006 (see $948r (c)). Such evidence had already been rejected by military tribunals. Obama is taking a rule that is already in place and spins it to pretend he's fixing something.
- Admission of hearsay
Again, window-dressing.
The issue of hearsay in civilian courts is admissibility of statements that are made other than inside of the court-room under oath. The problem here is the legally meaningful reliablity of such evidence. Any hearsay admitted as exemption has to overcome the reliability barrier, so the burden of proof is always on prosecution. And even though there are many exceptions to admissibility in civilian courts, the biggest issue for the military courts is recalling soldiers from active duty to testify.
Note two things:
(a) Military Tribunals already do not to accept any evidence that is unreliable. And if they did, there is an appeal process created under the Act that Obama voted against, under which any conviction based on unreliable evidence will be overturned.
(b) Obama doesn't eliminate hearsay, he only limits it. So what is he doing that's different?? He's shifting the burden of proof. But the MCA of 2006 already explicitly provides that any detainee is innocent until proven guilty, so it's obvious that any burden of proof is on prosecution. To pretend that Obama is doing something non-trivial with these rules is just laughable.
- Lattitude in chosing legal counsel
OK, instead of just getting a tax-payer funded lawyer, then can a private lawyer. And the security clearance required under Bush will probably be reduced. I can see a change here.
- Basic protections to those who refuse to testify
What could it mean? That the tribunal will not use the refusal to testify against the detainee? Well, the Bush tribunal rules already provide that "The Accused shall not be required to testify during trial. A Commission shall draw no adverse inference from an Accused's decision not to testify"
Bottom line is this:
the Bush commissions, combined with the Supreme Court ruling on ability to challenge combatant designation, provide more due process to detainee than any military tribunal in the US history.
Instead of sticking to his campaign promises, Obama is tweaking with what amounts to the commas and font of the existing rules.
For a candidate who spoke about Constitution, international law, habeas corpus, civilian courts, Obama is doing exactly NOTHING. His changes to the current system are so insignificant, it's laughable to think anything other than the truth - Obama is continuing the Bush system.
He's delaying again the process that he himself accused of being slow and inefficient. But most importantly, he's clearly admitting that Bush system is the best there is today - he's not offering anything better except for trivial or outright fake "improvements".
Yet another failed policy of the past supported by Barack Obama.