Blog of Rights

Military Commissions: Beyond Repair

By Suzanne Ito, ACLU at 4:52pm

How do you know when something is past the point of fixing? When it wasn't that great even when it was brand new, and kept falling apart until it finally broke down. That's the military commission system in a nutshell.

Today we learned that President Obama plans to retool the failed military commission system for 20 or so Guantanamo detainees. We're disappointed. During the campaign, then-Senator Obama promised a different approach to Gitmo (PDF):

The legal framework behind Guantanamo has failed completely, resulting in only one conviction…As president, Barack Obama will close the detention facility at Guantanamo. He will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries. (emphasis ours)
According to today's statement, the revamped system would still allow the use of hearsay evidence, which is inadmissible in federal court and military courts martial, in some circumstances. Fair and thorough? Not so much.

The military commissions are designed to ensure convictions, not provide fair trials.

The ACLU continues to call on President Obama to entirely scrap the failed military commissions process. Where there is actual evidence of criminal activity, our federal courts are well-positioned to accommodate legitimate national security interests without compromising the fundamental rights of defendants. As John Adams Project Director Denny LeBoeuf wrote recently in Salon:

Existing federal laws provide all the protection that lawful intelligence-gathering requires. The federal trials of the Blind Sheikh, the 1993 World Trade Center bombing, the 1998 East African Embassy bombings and the capital trial of Zacharias Moussaoui demonstrate that. Indeed, two former prosecutors studied every single terrorism-related trial ever conducted in the U.S. and concluded that the federal courts are eminently capable of handling these cases.
It's paramount that these cases are tried in a court that upholds due process, and in which judges and attorneys are held to constitutional obligations and accountable to the rule of law. Our time-tested civilian courts are equipped to handle complex national security cases, and have done so successfully before and after September 11.

To say otherwise is a slap in the face to our federal court system and the men and women who so honorably serve within it.

Our justice system depends upon basic principles of fairness and transparency. Once they are compromised even a little, they are rendered meaningless.

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