Military Commissions: Beyond Repair

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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Your current president Bush is much better in many ways than your previous president Bush. He's more intelligent and educated, doesn't appear fanatical, and doesn't torture and abuse the English language (and it remains to be seen if he, like the previous president Bush, silently condones torture of people).

Sadly, the current president Bush doesn't differ in any meaningful way from the previous president Bush.

The previous president Bush is in my opinion less culpable for his torture of people, laws, and language, because, well, let's face it, "diminshed capacity" and "the previous president Bush" are related terms. The current president Bush would sound much less believable if he once said he didn't know what he was doing.

The final conclusion then is that while the people may elect a new president Bush every once in a while, no real change can happen with the same president.

Hawaiian style

What's to repair. They are an unfortunate aberration of justice. Repairing them is like filling a black hole, you can just keep on shoveling.

The only question is how much do you have to do so you can sell the idea to a public that wants to believe in you.

Obama is intimidated by the CIA, the military, and the past Presidents Club. He is never going to go against any of them. He is hoping that the Congress will do the dirty work for him, and he will just watch.

That's not the action of a leader, its the action of a political coward. Sorry. If you thing I'm wrong prove it.

Domestic spying???

Torture investigation???

"A SMALL number of outlaws" that tortured.

Nuclear info to UAE??? What's the difference between us spreading bomb info and Pakistan spreading it? Proliferation to "allies" is OK and who are our allies? Proliferation by Pakistan to its allies is NOT ok.

Pictures of torture release, don't release. Better the devil you know than the one you imagine. Military says no; Obama says no.

The CIA is given an "I was just following orders defense", by a Constitutional scholar, an editor of the Harvard Law Review? What's his defense? "I was never very good in history???"

Who says we are at war? The President. Who gains huge powers when we are at war? The President.

Who is supposed to be the check on the Executive Branch? Con...ugh Cong...ugh I forget. I guess I haven't heard of any lately.

Who is more at fault? A go along President (with the CIA, the Miltary) or the go along Congress that is supposed to be a check on the Executive?

I'll bet Obama is secretly thanking Bush for doing all the heavy lifting. Now Obama can just sort of talk different, but really go along.

In the dark all cats are gray.

kent Bonde

I for one firmly believe that the ACLU has become a detrement to the National Security of this Country. Since when should terrorist subjects be afforded the same civil rights as American Citizens? We live in a very different and very dangerous world, with very real enemies of this country, who at this very minute are plotting attacks against us. While we are wasting valuable time and resources on haggling over whether to release photos of detainees or trying to lay blame for harsh interrogation techniques, these same terrorists the ACLU is trying to protect at the expense of our country, are laughing at how stupidly naive we are in playing into their hands.

I can guarantee that when the next attack does happen, the ACLU will certainly bear much of the blame and I sincerely hope that America wakes up to this reality. Some of us have, and we're not even registered Republicans.


These detainees are not American Citizens and do not deserve the same fundamental rights as Terrorists. Which by the way, in case you have forgotten, is exactly what they are. They deserve worse than what they received and I applaud the "enhanced interrogation" techniques for if the Obama Drama Administration would release all of the memos, it would be confrimation of the lives that were saved.

Why don't you concern yourselves with real issues that concern real Americans. If you are so concerned about rights and equal balance, why aren't you seeking out the rights of some other race in the NBA? No one has addressed the unequal balance in this job. But oh, I guess as long as it is leaning towards minorities, that is ok. If the situation were reversed, it would be a shame to see this organization come out of the woodwork, screaming and kicking. For the minorities, that is. No different from the New Haven, CT. situation. It doesn't matter about qualifications, as long as the minorities rule. Which is what it has come down to, if the minorities aren't qualified, then no one gets a promotion, right? Well, the same should apply to the NBA. There is not quota here, like I said, the minorities rule, so we are going to keep quite, make no noise, as long as other races don't step up and demand equal balance, then we're OK. I do believe this is the mentality here and I think it is time to have an equal balance across the board for all races, not just minorities. I think the ACLU ignores the rights of races other African Americans and Terrorists.

Maybe your organization should stop existing.


2 shockers in about as many days. First the refusal to release the terror photos and now this.

Extreme individuals need to be brought to justice by any means necessary. The freedom which is afforded to all law-abiding citizens is a product of doing what might not be popular but what is right for the U.S. and its interests. If the ACLU attorneys always had their way we would live in anarchy. A nation of people with their own individually-decreed laws.

Congrats Mr. President. You went 2 for 2 this week :)



The problem is Promise Eater is that the left in America put too much effort in electing a politician while doing way to little to end the war.It's sad that people have forgotten that it wasn't some politician that got the States out of Veitnam but rather those who took to the streets.

Hawaiian style

Lets see we want to try, and give to "Justice" to 20 out of 240 PRISONERS (sorry detainees).

Doesn't it seem strange that we are creating a Kangaroo Court for only 20 of these men. They must be the ones that we can't convict is a Real court, so we create a court and slant the rules in our favor.

If it wasn't bad enough to our reputation in the world that we:


We spy on our citizens

We hide the truth from our citizens

We employee the Nazi defense of "I was just following orders".

We ignore the law against torture, i.e., we don't prosecute those that do (if they are our citizens, we do prosecute foreigners that torture.)

And, now we are going to show the world that we create a special court to ensure that we are not embarrassed by trying 20 men in a real court. I wonder if the shame would be any greater if we just locked them away without this mock trial?


The more things change the more they stay the same.


It surprizes me not that such utterly stupid comments such as promiseeater would be posted on an equally stupid website.
All I can say is GOD BLESS YOU ALL!

Patrick Parker

You people amaze me! Do you forget what country you live in? What these scumbags have done to us? You should be grateful I'm not head of the CIA. Waterboarding would be a Sunday afternoon walk in the park compared to the hell I'd unleash on these people. Your organization makes me sick and the fact your organization's name starts with the word "American" is even more sickning! Never mind the fact that any one of these captives, given the chance would cut your head off, you bunch of terrorists loving communists. I wish the ACLU could be aborted!


What kind of moronic speak is that? The military is well positioned to deal with an enemy combatant taken off of the field of battle than a court system that will not be made up of a jury of his/her peers. To think that people from another country have some how now obtained the same rights that "We the people..." have is insidious and close minded and stomps on the memories of those fallen soldiers that gave you the right to free speach. Guantanamo should remain open and the military tribunals should continue without interuption or interference from the aclu.


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