They're Obama's Military Commissions Now
posted by: Jessica Pieklo 28 days ago
When President Obama signed into law today the National Defense Authorization Act (NDAA) he helped bring to reality the Matthew Shepard & James Byrd Jr. Hate Crimes Prevention Act, guaranteeing that hate crimes based on sexuality, gender identity and disability get the full attention they deserve. It's an important moment and one those fighting for civil rights should embrace.
But unfortunately, as with much of this administration, NDAA is yet another example of two steps forward, one step back. Within the NDAA was also the Military Commissions Act of 2009 and the equivalent of a personal endorsement by President Obama of a two-tiered justice system--one answerable to citizens and one shielded by the military.
The 2009 law retains the fundamental structure of the existing military commissions, a parallel system of military officials serving as both judge and jury. A military judge presides over trials and rules on issues of law and evidentiary matters. US service members serve as "jurors" and decide issues of fact and guilt or innocence, or in the case of some charges, life and death.
The new law does make some significant changes, and, since we are stuck with these for the time being, we should be glad that at least changes were made. For example, the new law specifically excludes statements obtained through torture (which shouldn't matter in terror trials moving forward because we are no longer torturing detainees, right?!), and defendants now have the right to attend their own trial and examine all the evidence to be used against them. Under the new law defendants will for the first time have the right to cross-examine witnesses and to call their own witnesses in their defense. Prosecutors are now required to turn over any exculpatory evidence as well as any evidence that might impeach the credibility of a government witness.
That's right. The changes to the commissions approved today are simply to bring the venue and its procedures in line with basic, fundamental constitutional law. Mostly. Under the new law military commissions will continue to be applied to a much broader group of individuals than should be tried before them under both the Constitution and the Geneva Conventions. Even more troubling, the law fails to prohibit military commission trials of children.
But each one of these changes came in direct response to jurisprudential rebuke from the Supreme Court and repeated rulings that fundamental due process cannot be avoided by creating alternative venues. When presented with the opportunity to do more, to bring the entire system in line with constitutional protections by eliminating it altogether, the adminstration balked. So while the new law is certainly better than the old, it can hardly be celebrated as a victory because the core constitutional insult remains. The approach taken by the Obama administration suggests they are treating it more like a penance-- the necessary steps to remedy past wrongs and nothing more.
But unfortunately, as with much of this administration, NDAA is yet another example of two steps forward, one step back. Within the NDAA was also the Military Commissions Act of 2009 and the equivalent of a personal endorsement by President Obama of a two-tiered justice system--one answerable to citizens and one shielded by the military.
The 2009 law retains the fundamental structure of the existing military commissions, a parallel system of military officials serving as both judge and jury. A military judge presides over trials and rules on issues of law and evidentiary matters. US service members serve as "jurors" and decide issues of fact and guilt or innocence, or in the case of some charges, life and death.
The new law does make some significant changes, and, since we are stuck with these for the time being, we should be glad that at least changes were made. For example, the new law specifically excludes statements obtained through torture (which shouldn't matter in terror trials moving forward because we are no longer torturing detainees, right?!), and defendants now have the right to attend their own trial and examine all the evidence to be used against them. Under the new law defendants will for the first time have the right to cross-examine witnesses and to call their own witnesses in their defense. Prosecutors are now required to turn over any exculpatory evidence as well as any evidence that might impeach the credibility of a government witness.
That's right. The changes to the commissions approved today are simply to bring the venue and its procedures in line with basic, fundamental constitutional law. Mostly. Under the new law military commissions will continue to be applied to a much broader group of individuals than should be tried before them under both the Constitution and the Geneva Conventions. Even more troubling, the law fails to prohibit military commission trials of children.
But each one of these changes came in direct response to jurisprudential rebuke from the Supreme Court and repeated rulings that fundamental due process cannot be avoided by creating alternative venues. When presented with the opportunity to do more, to bring the entire system in line with constitutional protections by eliminating it altogether, the adminstration balked. So while the new law is certainly better than the old, it can hardly be celebrated as a victory because the core constitutional insult remains. The approach taken by the Obama administration suggests they are treating it more like a penance-- the necessary steps to remedy past wrongs and nothing more.
Read more: guantanamo, civil rights, millitary commissions
comments
Jennifer Van Bergen, Military tribunals similar to these have been taking place for many years. For example, the accused conspirators in the assassination of President Lincoln were tried by a military tribunal because the rules of evidence weren't as strong as in a civilian court. Therefore, Mary Surat was found guilty & executed because the conspirators met in her boarding house & therefore she knew what they were doing. She didn't know what they were doing, but because the tribunal didn't need evidence proving that she did, she was found guilty.
That is the same thing that Bush's military tribunals were doing. In many cases, the defendant wasn't even present at the trial & had no defense attorney, not to mention the lack of evidence.
These tribunals need to go away, but at least the changes President Obama has made are a step in the right direction.
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If anyone out there actually thinks Obama could completely reverse every horrid aspect of the Bush administration, they are being incredibly naive.
The notion that Obama can immediately reverse every aspect of the former Administration's actions is absurd. The subtleties of our political process require that small steps are taken.
One of the Bush Administration's biggest flaws was the sort of unilateral, bullheaded decisions they made without much debate or input from others.
This current move in regards to military commissions is obviously not "the same", and represents a move in the right direction.
Obama isn't emperor, and he has to make decisions based on many factors, including many of the deeply embedded interests in this country who control the military, wal street, etc.
Remember man of these democrats in office voted in favor of say. 'extraordinary rendition', it was just Bush, and to think that Obama can just wave a wand and make empire go away is just silly, naive, and irresponsible, and playing directly into the republican's hands.
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Sounds like, to me, it could be just another kangaroo court. When the military makes decisions, what's the difference? Under Bush or Obama, I can't see the difference. Obama won't be making those decisions. The defendents will be at the mercy of the courts. Let's just wait and see what happens??
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On the sidelines by living in another country, I will have to wait and see. Don't you find that ironic? Should I not be happy for you? I see the time when our country will follow and hope that good will come of it.
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If the commision is not doing it job and fails to set up to the plate and completely do their job, then its time it went by the way side and got someone in there that is not afraid of hurting a few peoples feelings and making a few enemies along the way!
Its a tough world out there and it needs tough people to do the job!
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I hear and see very well the argument in this article, for I want anything even remotely tied into the Bush administration repealed and out of America's laws, legislation, regulations and mandates.
To an extent though, the military does indeed need their own judicial system as they are internationally far more reaching than an American court.
With just stating that though, court proceedings no matter what house it's held in should be fair and impartial. If it is deemed so that US military tribunals are inept in this regard and have no system in place to monitor it, then they warrant no chair in judgment...
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I wrote about parallel legal systems here: http://www.counterpunch.org/vanbergen06252005.html (although I didn't discuss the military justice system here -- I did discuss it in my book "Twilight of Democracy" (available on Amazon). Also, see my article on the National Security Courts idea here: http://www.counterpunch.org/bergen08202004.html.
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Military trials have NOT been "held like this" for 200 years. The military commissions under GWB violated not only the Geneva Conventions (reason enough) but the Uniform Code of Military Justice. Basically, those "tried" under these commissions (most detainees never even made it to trial) were viewed as outside both Geneva and UCMJ. (Admittedly UCMJ applies only to US service members, but it has been used as a standard, which was ignored by GW, as were the mandatory standards of Geneva.) See my article "Bush War" published on Truthout July 2003, archived here: http://jvbline.org/line/content/view/60/109/.
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We should be encouraged by the changes , but its broad application to individuals is disturbing. If a military commission should be kept it seems to me it should be very, very narrowly applied to US military personnel only, resolving legal and disciplinary issues related to the military. If the commissions are intended only as cover to circumvent constitutional law and Geneva conventions rather than exist within the frame work of those laws, than the commissions should be shut down.
And thank you Ms. Pieklo for your clear concise writing; I find your commentary very helpful to understnding the legal aspects of these issues. For exmple, "the core constitutional insult remains", is a powerful expression that I find applicable not only to "don't ask don't tell", but very obviously to DOMA.
Clearly
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The way I see it, any steps forward is a win. Let's face it, these practices of trial by military have been held like this now for what 200 years+Any steps forward has got to be a good change. The end of making planes that have been outdated since the cold war should have been done decades ago, what at least 5 Presidents ago, yet they continued to produce the same plane, to what, sell them to 3rd world countries? Is a step in the right direction..
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