Bush era military commissions were constituted for the express purpose of ensuring convictions. It was an axiom of Bush era “justice” that there was no such thing as an alleged terrorist. As one commentator on NPR noted yesterday or the day before, if you determine that you want to convict somebody of a crime and rig up a court in which to do so, you’ve given kangaroos a bad name. But apparently that’s the reason for the Obama administration’s revival of the Bush era military commissions, according to stories in this morning’s New York Times and Washington Post.
According to Post writers Michael D. Shear and Peter Finn:
Inside the administration, the debate over the military commissions was rigorous, with Obama eventually siding with the generals and other military officials who feared that bringing some detainees before regular courts would present enormous legal hurdles and could risk acquittals.
Of course any honest litigation risks acquittal of the accused. In this case it would appear that legitimate trials of the thirteen or so alleged terrorists for whom Obama is reviving the military commissions would be jeopardized by the fact that these detainees were not given Miranda warnings by the FBI lawyers who re-interviewed them and obtained confessions to replace earlier statements obtained under torture.
The whole thing stinks, but it seems likely that the military considers these thirteen to be guilty and dangerous. It also seems likely that Obama considers that he has made a least of evils choice in a situation that offered him no good. The rest is spin, particularly the administration claim of consistency for a policy choice that clearly violates Obama campaign promises. I’m thinking the spin is aimed less at ACLU and other liberal criticism, which it appears to counter, than at the fulminations of Richard Cheney and Obama’s obdurate Republican opponents in the congress. According to Robert Gibbs:
The president has been consistent in his views on this issue and been consistent on what was lacking in order to ensure justice, in order to ensure protection, and most of all to ensure that this process goes forward with and doesn’t see repeated legal stalls in going through the court system.
This is ethical doublespeak that would do credit to Karl Rove. How can the military commissions “ensure justice” when they have been expressly constituted, and now revived, in order to ensure convictions, or in Gibbs’s words, “to ensure that this process goes forward with and doesn’t see repeated legal stalls in going through the court system”? Still, it may clarify the policy intention.
The depredations of Lyndon Johnson and Richard Nixon weakened the presidency itself, just as George Bush did during his eight years of overstepping and criminal conduct in office. But I think Jimmy Carter may have been mistaken when he more or less embraced a weakened presidency. I’ve always been of the opinion that it was the Iran hostage crisis that brought Carter down.
I can understand why Obama doesn’t want to uncover and expose the crimes and misdemeanors of his predecesor. I can even understand some limited continuation of Bush era policies when undoing them would cause harm in itself. The country doesn’t need another Watergate. However, in trying to appear tough on national defense Obama risks appearing pusillanimous in the face of right-wing criticism. That prospect bothers me a lot.
And there’s one other thing. Will the government seek the death penalty against any defendants tried by military commissions? It’s a very disturbing thought that we might put to death persons whom we have already tortured and incarcerated without trial for many years. It’s even more disturbing that we might do such a thing on the basis of determinations made by kangaroo courts.
