American Civil Liberties Union

"Tweaking" The System Will Not Make It Constitutional

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – According to The Wall Street Journal, the Department of Justice (DOJ) has issued guidance to the Obama administration on reviving the military commissions system to try Guantánamo detainees. The Journal reports that the DOJ's Office of Legal Counsel advised the administration that detainees can claim some constitutional rights if they are tried in military commissions within the United States.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"While the Justice Department is correct that the Constitution must apply to trials of terrorism suspects, it is gravely wrong to think that this can happen in the context of revived military commissions. The commissions system is inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. It is designed to ensure convictions, not achieve justice.

"If the Obama administration truly intended to try the detainees in a system that provides fundamental rights and protections, it would do so within the tried-and-true federal court system where both national security evidence and fundamental rights can be protected. The only conceivable reason to design an alternative legal system would be to evade due process requirements. The proposed fixes to the Bush-era military commissions are thoroughly insufficient; there is no such thing as 'due process light.' If the Obama administration chooses to proceed with the commissions, it will find itself mired down in the same morass of legal challenges that the Bush administration did.
 
"It is also becoming increasingly clear that Obama's 'cabinet of rivals' is devolving into intramural squabbling – with the Defense Department trouncing and shooting down the policy positions of the Justice Department. Pentagon officials who object to affording detainees their full constitutional rights if they are brought onto the U.S. mainland seem to be merely making a behind-the-scenes play for keeping the military commissions in operation at Guantánamo –  hoping to force the president's hand into breaking his clear promises in the executive orders he signed his first day in office."