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What Do Vacuums and the Military Commissions Have in Common?

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July 9, 2009

This week has been a busy one for those following the military commissions debate. Congress has held not one, but two hearings on recent proposed changes to the military commissions.

Before we get into that, a brief history lesson: The military commissions were created in 2006 by the passage of the Military Commissions Act. I could write paragraph after paragraph about why this bill was unconstitutional, should never have been written in the first place and was partially ruled illegal by the Supreme Court but, for the sake of time and space, I’ll just point you here.

Fast-forward to January 2009. President Obama declares on his first day of office that the military commissions are being stopped in their tracks and suspended for 90 days. In May, the president made a highly publicized speech at the National Archives (standing directly in front of the Constitution, mind you) saying that, you know, the military commissions maybe aren’t so bad. He wants changes made. Trouble is, those changes would still allow for hearsay and coerced evidence to be admitted and used against the defendant. Coerced evidence is one step above evidence obtained through torture and neither it, nor hearsay, has a place in any courtroom Americans would consider fair, right?

So, anyway. On Tuesday, the Senate Armed Services Committee held a hearing to discuss both the president’s proposed changes to the commissions, as well as the language in the Defense Authorization bill. Two panels were scheduled and it looked to be pretty interesting — especially as all the witnesses on the first panel were government witnesses. It got a lot more interesting once they opened their mouths. Assistant Attorney General for National Security David Kris, Pentagon General Counsel Jeh Johnson and Navy Vice Admiral Bruce E. MacDonald testified and, though it was all fascinating, two things stuck out.

  1. Kris said that the Obama administration believed that the due process clause of the Constitution applies to the military commissions. This is big. Due process means the right to a public and speedy trial among other rights. The train left the station a while ago on “speedy,” but “public” should certainly at least mean no secret evidence should be admitted. Due process should also mean no evidence obtained through coercion, which shoots down a provision included in the Defense Authorization allowing it. Hopefully this will be addressed before it goes to the floor.
  2. Johnson testified that the administration believed that individuals who were tried and acquitted of all crimes could still be held if the government deemed them too dangerous. Whaaaaaaaaaaaaaat?! Is that really a door the administration wants to open?

On Wednesday, the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties also held a hearing on the military commissions. Our very own Denny LeBouef testified, as did Lt. Col. Darrel Vandeveld and a few others.

This hearing, as they usually are in the House, was a little more cantankerous. First of all, the Republicans consistently outnumbered the Democrats in attendance during this hearing — and so, so many others that the Judiciary committee calls. Those members that showed up though put on a great show. The highlights included Congressman Sensenbrenner (R-Wis.) jumping on LeBouef for taking issue with statements from a sorely underqualified witness who has never been to Guantánamo and, by the way, is not a lawyer.

The other was pretty much any time Lt. Col. Vandeveld opened his mouth. Lt. Col. Vandeveld was a prosecutor in the military commissions and was set to be arguing our country’s case against child soldier Mohammed Jawad. When faced with evidence he felt did not pass muster, and after seeing how Jawad was treated at Guantánamo, Lt. Col. Vandeveld asked to be reassigned last year. His story is not only compelling, it goes to the very core of whether the military commissions can ever be truly fair or seen as a legitimate system of justice. Both the colonel and the ACLU agree that system is structurally flawed and broken beyond repair. In the end, it was one of the better hearings I’ve been to in my time at the ACLU.

Coming up, the Senate is due to take up the Defense Authorization and could vote on that bill and the military commissions language written into it as early as next week. Look out for ugly Guantánamo amendments — this is just the kind of vehicle people attach things to. Also next week, the House Armed Services Committee is holding its own hearing on Thursday.

So what do vacuum cleaners and the military commissions have in common? They both suck. Needless to say, we’ll be keeping an eye on both sides of the Capitol next week.

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