Obama's Military Tribunals

The US Supreme Court ruled last year in Boumediene v. Bush that habeas corpus rights extended to the detainees held at Guantanamo (note that the ruling does not necessarily entail that habeas extends to all detainees held elsewhere). Importantly, the ruling found the 2006 Military Commissions Act suspension of habeas to be unconstitutional. The MCA had asserted that detainees had no access to the US civil court system.

Military tribunals allowed under the MCA were not only unconstitutional. There are further problems for a policy reinstituting military commissions. From a forthcoming piece on detention policy and government accountability:

...closed military tribunals do not inspire confidence... [they] can provide a forum for shaping the guilt of the accused for extra-legal reasons... [and] may also serve as a means of deflecting scrutiny for otherwise criminal abuses committed in the course of evidence-gathering. From a political perspective, especially once connected to demands for accountability for government abuse of detainees, this option appears entirely untenable.

Unfortunately, Obama is apparently taking this Bush administration route, having chosen the policy from a range of other options, including the try-or-release approach encouraged by the UNHRC and others. The details on the proposed tribunals remain sketchy, with simply a few vague reassurances that,

the changes were designed to give defendants stronger legal protections, such as a ban on evidence "obtained through torture, or by using cruel or degrading interrogation methods," like waterboarding; limiting use of hearsay evidence; granting the accused more say in who represents them; and protecting detainees who refuse to testify from legal sanctions.

Of course, Congress likes it:

The Democratic chairman of the Senate Armed Services Committee, Carl Levin, D-Mich., called the changes "essential in order to address the serious deficiencies in existing procedures." Senate GOP Leader Mitch McConnell said the announcement was an "encouraging development."

"It's a difficult legal situation, and I think this is really the only rational choice to make," said Sen. Sam Brownback, R-Kan., who opposes bringing detainees to the military's maximum security prison located in his state.

And what is this "difficult legal situation"? It is that the US government tortured at least many and likely most of the detainees whom these tribunals are designed to process. Further, many detainees were originally picked up with the slightest of evidence, including hearsay accusations. Evidence from torture and evidence from hearsay are obviously inadmissible in a fair court of law in pretty much any country not run by authoritarian government. Thus, of the hundreds of present and former Guantanamo detainees, the cases against the couple of dozen who are thought to be actual dangerous terrorists are actually quite weak. Since the US suspects these detainees to be dangerous, it doesn't want to risk releasing them after a fair civil trial. So, the US has created tribunals with the intention of finding the detainees guilty and ordering their indefinite detention based on evidence that would not pass in a civil court.

In fact, the entire process has been corrupted by Bush administration detention policy and torture. The "difficult legal situation" was created by the Bush administration.

Obama is assuring us that no evidence from torture, other abuses, and hearsay will be admitted in his version of the military tribunals and the detainees will receive due process. What will qualify as evidence?

And if these tribunals involve more rights for detainees, then why not use civil courts? The central reason is that, no matter what the reality of their actions and affiliations (which is in doubt anyway, given the abuses), military tribunal policy entails that these detainees, a priori, do not have the right to be potentially found innocent of the charges made against them.

It may be possible ultimately to twist and turn one's way through technicalities of constitutional law and end up with military tribunals. But the defense of the spirit of the law, which was a central motivation for many Obama voters, is now a slippery slope eroding under the Obama administration.