NO to Proposal for New Terrorist Courts (Updated)

It's with a great deal of hope that Barack Obama will be inaugurated President next January. In regards to the Bush Administration's policy on torture and indefinite detention, as represented by the ongoing incarceration of hundreds of prisoners at Guantanamo Naval Base, Obama announced in August 2007: "As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions."

Meanwhile, a new Associated Press story reports that Obama's advisers are working on a plan to close Guantanamo prison, release some of the prisoners, and send the rest to trial in the United States. This would be a welcome act indeed, and the ACLU has published a full-page ad in the New York Times (see link first paragraph), asking Obama to close Guantanamo by executive order on the first day of his presidency.

Unfortunately, the new plan carries a significant flaw: Obama is proposing the creation of "a new legal system to handle the classified information inherent in some of the most sensitive cases." [Please read update below]

The new courts appear to be the brainchild of Harvard law professor Laurence Tribe, who described them as "some sort of hybrid" legal system, involving military commissions that would "both be and appear to be fundamentally fair in light of the circumstances." Tribe says we'll just have to trust Obama on this, and give him "the benefit of the doubt."

No, Professor Tribe, we do not have to do that, and we won't do that. A spokesman for the ACLU responded to the new plan for a post-Gitmo judicial system:

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees, said Monday. "We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems."

"A Quick Dirty System"

The ACLU has had more to say on this subject, most recently in an interview by Glenn Greenwald of Salon.com with Anthony Romero, the executive director of the American Civil Liberties Union, earlier today (apparently before the AP story broke). Greenwald asked Romero if the transfer from Guantanamo of "several hundred highly complex cases to the federal judiciary" would administratively overwhelm the courts. Romero responded:

I don't want a quick dirty system that dispenses with people's rights in a too expedient and a too quick a manner.

The fact is, the government is going to have to bear the burden of proof. Can you try these individuals in a criminal court, or a military commission under the Uniform Code of Military Justice, and come forward with the proof that will stand up in courts of law that are governed by the Constitution, and if it can't, you've got to release them. That's our system.

Greenwald then asked about the argument that "the rules have to be different for people engaged in acts of war." Evidence typically cannot easily be gathered at the scene; the prosecution often relies on classified information and secret witnesses; the burden of proof seems inappropriate in such cases, as compared to domestic prosecution of criminals. Romero replied in some detail, as these matters are not typically known or discussed among non-attorneys, and certainly not as sound-bites on either the liberal or the conservative news shows:

We understand that these cases may represent different legal theories than the thug on the street who picked up my wallet, right? We have procedures in place to deal with them. We have the Classified Information Procedures Act, which allows us to put evidence before judges and make sure that if they're classified or if they represent issues on national security they're not broadcast to the public, therefore jeopardizing national security further. We have ways of making sure that witnesses are protected in coming forward, so that they're not open to further attacks by other terrorists who might be still out there.

And I think it was a great report, that wasn't put out by us - I would have loved to have put it out - it was put out by a group of former prosecutors and former military officials, Human Rights First, that said that our existing criminal justice system, and our existing UCMJ system, the Uniform Code of Military Justice system, is perfectly equipped to deal with these types of cases. We've done it before. In fact, we've done it even in the Bush administration; we have Zacarias Moussaoui and Padilla prosecuted under federal criminal courts. And what we need is to make sure we have a neutral set of rules.

As news of the hybrid courts plan begins to filter through the media and blogosphere, initial reaction has been negative. Spencer Ackerman described his reaction in today's Washington Independent, while noting that this "plan" has all the earmarks of a "leaked" proposal:

The AP’s reporting suggests Obama is considering a “hybrid process” between the military commissions and the full process enjoyed by U.S. citizens. If there’s anything the military commissions process should have taught, it’s that reinventing the legal system doesn’t work, as demonstrated by the bevy of military lawyers who have resigned in protest of the commissions.

The concern, stripped of euphemism, is that the evidentiary basis for many trials of Guantanamo detainees — including, in many cases, torture — would never be admissible in any court worthy of the name. That’s the Bush administration’s legacy. But it can’t be the basis for cheapening our legal system.

The Return of Mukasey's "National Security Courts"?

What struck me about Obama/Tribe's plan for a "hybrid legal system" was its similarity to the old proposal by soon-to-be-former Attorney General (and stooge) Michael Mukasey to establish "national security courts". Where Anthony Romero looks at the Moussaoui and Padilla prosecutions and sees the sufficient functioning of the current legal system, Mukasey, in an article published in the Wall Street Journal in August 2007, describes a situation where "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."

Mukasey's argument for a new special kind of court in which to try "terrorists" sounds suspiciously like what is known thus far about the Obama/Tribe proposal:

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means....

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

John C. Coughenour, the federal judge who presided over "the trial of Ahmed Ressam, the confessed Algerian terrorist, for his role in a plot to bomb Los Angeles International Airport" critiqued Mukasey's proposal in an op-ed in the New York Times in November 2007:

It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy....

Judge Mukasey raises a legitimate concern about whether open judicial proceedings may compromise intelligence gathering. But courts are equipped to meet this challenge. The Classified Information Procedures Act provides a set of rules for criminal cases...

Certainly this system cannot entirely prevent any misuse of information; the mere fact of an arrest may tell a story we’d rather our enemies not hear. But our system provides a sensible way to protect national security while maintaining some degree of transparency.

Hope and Foreboding

I and others have noted that the weakest link in Obama's claim of liberal program is his adherence to the language and intent of Bush's "War on Terror." It was not clear during the campaign if this was Obama's nod to the center of American politics, or a real conviction. The first signs coming from the Obama camp are still mixed, but there is a real wind of foreboding. President-elect Obama has made clear signs he plans to close Guantanamo. I would like to hear that he will also withdraw the executive order by Bush that allows the CIA to practice "enhanced" techniques of interrogation, i.e., to practice psychological torture.

But this first trial balloon from the Obama camp on torture and terrorism is redolent of the rejected policies of Bush's Justice Department. I do not expect Obama to listen to the complaints of one little blogger, but I do expect the progressive community to speak out and speak out forcefully against any and all attempts to restrict constitutional rights, whether such attempt comes from the left or the right.

Update: Well, this is what comes with writing a "breaking" diary. The Obama team has announced that Obama is not considering any kind of new court for detainees. Per Talk Left:

"....There is absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until his national security and legal teams are assembled," said Denis McDonough, a senior foreign policy adviser for the transition team, in a statement.

This is certainly great news. I can't know why the leak was made about the "new" courts. In any case, I am letting the article stand as a discussion of the general issues, and removed Obama's name from the title.

As Jeralyn at TalkLeft put it:

There's only one right answer here. Close Guantanamo on day 1 and try the detainees either in U.S. criminal courts or military courts operating under the Uniform Code of Military Justice.

Please note, Meteor Blades has written contemporaneously with this piece an excellent front page diary at Daily Kos covering much of this subject matter. He makes some additional points about closing ALL the torture prisons, which I neglected to make in this piece.