Sleight of Hand: Obama's Military Commissions Redux

Peter Finn at the Washington Post appears pretty confident about it:

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

This news comes after Andy Worthington's scoop that Chief Prosecutor of the Military Commissions, Col. Lawrence Morris, "is retiring from active duty, and will be replaced by Capt. John Murphy (US Navy Reserve)." Murphy was the lead prosecutor in the case of Salim Hamdan, Osama bin Laden's driver, who despite Murphy's plea for a 30-year-sentence for the small fry Hamdan, got a minimal sentence and was sent back to Yemen last November.

Murphy is also a member of the prosecution team for Omar Khadr, the Canadian famously arrested on the battlefield at age 15 and shipped back to Gitmo as a dangerous "terrorist." As Worthington notes:

As Khadr’s case is one that, outside of the Pentagon and the corridors of power in Canada, has attracted universal condemnation –- primarily because of the Bush administration’s neglect and abuse of a juvenile, and because of well-chronicled attempts by the prosecution to suppress evidence vital to his defense –- it may well be that, as a result, Capt. Murphy will pursue an aggressive agenda if the Obama administration decides to ignore all sensible advice to the contrary, and proceeds to revive the Commissions, rather than pursuing those cases worthy of trial (somewhere between 25 and 50, according to the best estimates) in federal courts on the US mainland.

The Washington Post story, and an earlier one in the New York Times, appear to corroborate Worthington's fears about where the military commissions are going.

Amnesty International and ACLU spokesmen have already denounced the proposed "changes". "'It's going to tarnish the image of American justice again,' said Tom Parker, a counterterrorism specialist at Amnesty International."

bmaz over at Emptywheel/FDL has produced a succinct takedown of the Obama proposal:

The rules would "block the use of evidence obtained from coercive interrogations". All evidence from coercive interrogations or just some evidence from coercive interrogations? Will the ban be on any coerced statements and fruits thereof, or only those that came from that particular defendant? Will coerced statements from others be allowed, and if so to what degree? What about the fruit of coercion? Once you have tortured an individual, how do you not term any information obtained while he is still detained subsequent to that torture to not be the product of coercion? The reliance on "clean teams" and/or regular interrogators subsequent to torture to sanitize the proceedings is a joke. It is crystal clear that the Obama Administration is desirous of sliding in a lot of evidence this way, it is why they have fallen back onto the tribunals.

This idea of evidence scrubbed clean of its torture taint reminds me of Binyam Mohamed’s interview with the Daily Mail only two months ago (it already seems like an eternity):

[Binyam Mohamed] reached Guantanamo in September 2004.

There, the interrogations continued but there had been another shift.

He says: ‘They said they were worried I would tell the court that I had only confessed through torture. They said now they needed me to say it freely.

‘We called them the clean team, they wanted to say they had got this stuff from a clean interrogation.’

bmaz continues:

The rules would "tighten the admissibility of hearsay testimony". Well, as stated above, this is not the case in the least; in fact, the rules are specifically designed to allow for wide ranging admissibility of hearsay. Again, that is the whole purpose here. The use of "hearsay" here is going to be designed to protect sources and means, conceal identities of the agents of torture and rendition and allow for selective use of classified information without challenge. In short it is nothing but a scam to deny the defendant the opportunity to confront and cross-examine his accusers and the evidence propounded against him; the very principle that is the bedrock of minimal due process and fundamental fairness.

The rules would "allow detainees greater freedom to choose their attorneys". You've got to be kidding me. Seriously? What a load of dung. The Obama Administration has proved themselves every bit as obstreperous in relation to allowing effective assistance of acceptable counsel to the detainees as the Bush/Cheney crew was, witness the dogged determination to remove Kuebler in the Khadr case. How, pray tell, are detainees that have been locked up in the hell hole of Guantanamo for five plus years, tortured, isolated, feared up, egoed down, repeatedly told that any lawyer they speak to is an imperial American spy out to get them etc. going to meaningfully participate in obtaining counsel of their choice? And that is before you get to the fact that the US government has extremely narrow acceptability criteria for attorneys that are even able to be contemplated for participation in the tribunals.

I don’t think, however, that the resurrection of the military commissions is a manifestation of laziness on Obama’s part. Nor is it a failure of leadership, per se. The Military Commissions are a constituent part of the torture program which, even now, is not dismantled, and continues in somewhat attenuated form as part of the Army Field Manual. It is also part of the cover-up of the previous torture program, allowing for the use of torture evidence without the political explosion that would take place by having to release or acquit “terrorists” (really “accused terrorists,” but who cavils about such things in our modern America anymore?) because the evidence was tainted by torture, and therefore inadmissible.

All signs point to the fact that when it comes to national security and military matters, Obama is compliant to the wishes of the Pentagon, that he has no real policy of his own. For that matter, has Obama ever rejected the Bush-era 2002 document, The National Security Strategy of the United States of America, which famously put forth the current U.S. doctrine of pre-emptive war and world U.S. military supremacy? If he did, I missed it somehow. But then, there is a “process”:

By law, Obama is required to submit a comprehensive national security strategy report within 150 days of taking office. A Defense Department briefing slide reviewed by Inside the Pentagon suggests the new team might develop high-level planning guidance next spring, followed by a new national security strategy next summer. In early 2010, the Obama team’s first QDR report would be issued, along with a National Defense Strategy and National Military Strategy, according to the slide.

If the new proposal for military commissions hangs true, then I think we are getting a sneak peek at the politics that will drive the Obama's new National Security Strategy report, and I don’t expect a big difference from what we have seen, at least not when it comes to the "Global War on Terror."