The “political winds” dictate policy:
The Obama administration is preparing to increase the use of military commissions to prosecute Guantánamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.
Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.
Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.
Preparations for the tribunal trials — including the circulation of new draft regulations for conducting them — were described by several administration officials familiar with the discussions. A spokeswoman for the military commissions system declined to comment.
With the political winds now against more civilian prosecutions of Guantánamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.
Bunch of cowards in Congress. But then again, they like it when you all are afraid.
RP
I hate this, but if they’re not going to move these guys, havnig the tribunals is better than just letting them sit there forever.
Agoraphobic Kleptomaniac
Sigh.
That week after his election will now be seen as political pandering, and everything else he’s done since will be seen as his M.O.
Ija
This is pretty disturbing too, no?
Opps, blockquote fail. That second paragraph is also in the NYT story.
Omnes Omnibus
@RP:Unfortunately, this is true.
The Grand Panjandrum
Yes, political winds should always be the determining factor in human rights. Especially when it concerns “those people” presumed guilty because they worship the wrong god.
Zifnab
You know, I remember a lot of arguments getting thrown up during the ’10 elections. But “how we try Guantanamo detainees” isn’t really one of them.
On the flip side, Republicans now have a little more credibility when they refer to the federal government as little more than an amoral out-of-control soviet-style dictatorship.
Xenos
Hearsay really is not such a big issue here – at least it should not be. Unless these military commissions have public juries. Hearsay evidence rules are mainly about keeping dubious testimony away from juries, not judges.
Mattminus
@RP:
Ummm, what exactly do you think the outcome of the “trials” are going to be? Sitting forever with a bogus conviction is better than sitting forever without one?
Politicians have dine the risk assessment and decided that there if there is even a .00000000000000001% chance that one of these guys does something again, that’s too great to countenance. They will never get out.
The Moar You Know
@Zifnab: Oh yeah, their credibility is so improved…after all, they were the ones who voted to deny the funds to close Guantanamo, forcing us to either keep all the detainees there forever, let them all go (you must admit that THAT particular option is politically impossible) or try them via the only option left (since they cannot be released thanks to the actions of the Republicans that you’ve decided you’re so in love with) which is tribunals.
Look, the tribunal process is a travesty and a mockery of justice. We all know that. But to excoriate Obama and the Democratic party as being the incarnation of an “out-of-control soviet-style dictatorship” simply because they made a promise (closing Guantanamo) that they could not deliver on seems to me to be a case of some seriously misplaced anger. Hate the Republicans that forced this nation to this course of action. Don’t hate the people that – at least most of them, including Obama – tried to stop it.
Comrade Mary
Clean-up in aisle 2, please: John’s post on ABL and FDL directly below cuts off after Patrick’s comment: weirdness in the right column and no comment box.
Thanks!
J sub D
Hope and change doesn’t apply to Gitmo.
Mattminus
@The Moar You Know:
Obama is, after all, only following orders.
That’s always been a legitimate defense, hasn’t it?
danimal
@Comrade Mary: I tried twice to make a weak attempt at humor on that thread, and neither post appeared. Both had blockquotes, FWIW.
Since my joke probably wasn’t terriby funny, I’m not so sure it’s a bad thing that the thread died.
Belafon (formerly anonevent)
@J sub D: Why do you think Bush had them incarcerated at Gitmo?
General Stuck
Per Obama’s signing statement of disagreement with the bed wetting congress critters, I think he may have a case for defying them and trying at least the 9-11 guys in US Federal Court. It happened on American soil, and arguably, or not, it is perfectly proper and within a presnits constitutional duty to try them this way, if he so chooses. It is a little more murky for the others captured overseas, with no alleged crimes on American soil.
Tribunals are permissible imo, if they offer basic jurisprudence in line with our system of justice. Allowing testimony from torture would be an abomination, or any other deviations similar.
Omnes Omnibus
@Mattminus: Which option do you recommend? Release?
Dave
Congress left Obama with two choices:
1. Use signing statements to override Congress’ authority (like Bush did) and do what he wants
2. Use military commissions to try these detainees as opposed to not trying them at all.
Which choice should he have made? Of two suck-tastic choices, Obama made the right one. But the fault for these detainees not getting a real trial doesn’t lie with Obama. It’s Congress’ gutlessness that created this situation.
Tom
Where did I just read this?
Karmakin
No, it’s the gutlessness of the voting public that would basically crucify any action that resulted in any sort of terrorist backlash.
This isn’t a case of corruption or anything like that. It’s simply politicians acting in their own best, democratic, interests.
Xenos
@Karmakin: ‘We have met the enemy, and he is us.’
General Stuck
@General Stuck:
Of course, it would not be a good idea for Obama to defy a public law and try KSM and the other 9-11 guys, without running it by the SCOTUS first, to define whether congress can pass a law that directly countervails Article 2 powers.
Tim
So, John, the only cowards are in Congress?
Sure there’s not a big-ass one in the White House?
mantis
Why doesn’t Obama just use the bully pulpit and fix this? Because he’s really Hitler and Dick Cheney combined, but worse, that’s why!
Glenn Greenwald, signing off.
Face
Wait…I thought Hamdan v. Rumsfeld declared these guys get a civilian trial? Or is that wrong?
agrippa
It is better than having them kept forever.
They are entitled to a fair trial – not a drumhead court martial – and, I suspect, most of them have done next to nothing.
Acquit most of them, and release those acquitted.
All of those people should have been tried in a normal way in federal court.
Zifnab
@The Moar You Know:
First off, I never said I was going to “excoriate” anybody. I simply said that the GOP has been screaming about impending military dictatorship and now we’re one step closer to a military dictatorship. That they and their Tea Party minions proudly tout this aspect of a military dictatorship is not part of my point.
Second off, this is one of those cases where you really can step in and point out how “the Democrats do it too”. I can name plenty of Democrats – from Diane Feinstein to Evan Bayh to the Nelson Brothers of Florida and Nebraska to Joe Fucking Lieberman to all the Blue Dogs the House has ever held – that are totally cool with the Gitmo situation. Civil Rights, as it pertains to the generic asexual and racially neutral individual, is not part of the Democratic Party platform.
Obama approached Gitmo and the foreign secret prisons and all the rest with a very light touch. When the conserva-Dems flinched, he backed off. Progressive politician with a skill for oratory and advancing compromise legislation he may be, but MLK our President definitely is not.
I’m not going to give the Democrats a pass on Gitmo. At one point they controlled the House, 60 votes in the Senate, and the White House. That brief window of opportunity should have usurer in a flood of desperately needed legislation. The Dems missed their opportunity. They don’t get a pass on that.
Omnes Omnibus
@Tim: Obama sought legislation on this; he was rebuffed. Given the current state of the law, the Administration has limited options.
Bob Loblaw
@Omnes Omnibus:
At this point, they should just put all the remaining prisoners on some shitty raft and send it out to sea in the middle of the night. Then shoot the thing with a Predator drone.
Loop closed. Problem solved. Everybody gets laid.
Dervin
I’m OK with this, my guess is the groups going to the military tribunals will either be dangerous guys who were able to shield themselves from the legal system – think of mafia godfathers or poor b@stards who were at the wrong place at the wrong time and a civilian trial acquittal would send the right-wing into even greater hysteria. A military tribunal acquittal will at least mitigate some of the eventual fallout.
Civilian trials will still be for slam dunk cases.
Omnes Omnibus
@Bob Loblaw: There are those who would sign on for that plan.
Chyron HR
The administration should use the tools they have at their disposal which don’t require President Snowe’s approval.
They are? Well, I changed my mind, so he’s still the worst President ever.
sukabi
someone better be careful with the talk of trying folks for “war crimes”… if we can try others for “war crimes”, what makes the PTB think that others can’t try us for “war crimes”…
J sub D
@Belafon (formerly anonevent):
Because he doesn’t give a shit about human rights when it’s politically convenient to ignore them.
Why do you think Obama has reserved the right to indefinitely incarcerate “terrorists” who are acquitted?
Belafon (formerly anonevent)
@Zifnab:
ConservaDems? I believe the vote was 98-0. Is every Senate Democrat suddenly conservative?
Dave
@Belafon (formerly anonevent):
Exactly. Let’s not forget people like Bernie Sanders led the fight AGAINST funding the Gitmo shutdown.
But no, it’s way easier to blame Obama.
NobodySpecial
@Face: No, they get nothing, because it’s politically expedient that they get nothing.
Punchy
Who cares? They’re all just terrorists, and if you give them a real trial, their finely-honed mind-control powers will easily overpower the judge, allowing them to run free in the streets of Newark, lighting Pintos on fire and eating hummus.
slag
I don’t understand what you’re worried about here, John. You did hear Republicans read the Constitution–in part–aloud on the House floor, did you not?
GregB
Terrorist: These aren’t the terrorists you’re looking for.(Waves hand at judges and prosecutors)
Judge: These aren’t the terrorists we’re looking for.
Pangloss
@Omnes Omnibus:
But he hasn’t used the magical powers of The Bully Pulpit. Law, tradition, convention, and constitutionality are all rendered moot by proper use of The Bully Pulpit.
eric
@Ija: Is it really hearsay? I thought police investigative steps could be admissible. If it is a statement that “I saw X blow up building,” that may or may not be hearsay if it is against the speaker’s interest (whose identity might not have be disclosed — a problem in itself), but I thought law enforcement could introduce some otherwise hearsay statements to describe what they did in their investigation…..admittedly the Bar was a many moon ago and i dont practice in criminal court.
Mart
What does the rest of the world think of the USA when we complain to China about their human rights abuses after we ramped up our very own programs over the past ten years?
Omnes Omnibus
@eric: It is hearsay if offered for the truth of the underlying statement. If, on the hand, the cop is asked why he went to the building to check for bombs, the underlying statement would be admissible. I think this is right, but the Bar was many years ago for me as well.
Stefan
I’m OK with this, my guess is the groups going to the military tribunals will either be dangerous guys who were able to shield themselves from the legal system – think of mafia godfathers
I have no idea what this is supposed to mean. How exactly would they “shield themselves from the legal system”? (AS far as I know, Mafia godfathers, for example, frequently are tried and convicted in court). Could you explain this in plain English?
Dork
Just to give y’all a taste of my formitable future-telling powers, here goes: Staring into my cloudy crystal bowl of soup, I can accurately predict that every one of these “defendants” will be found guilty and sentenced to life.
Also: The Patriots will not win the 2011 SB.
Stefan
So, the end result is that basically no one will ever be tried and brought to justice for the largest act of mass murder in American history. Legally there will be no accountability whatsoever — there will never be a credible legal judgment that these men were guilty of this act. Nice.
slag
@Pangloss: Personally, I have no problem blaming the whole lot for this stuff. Including a large portion of the American populace.
I, for one, am tired of watching civil liberties issues get tossed around like a hot potato. As far as I’m concerned, the Administration owns it, Congress owns it, and consequently, I fucking own it. Which pisses me off to no end.
NobodySpecial
@Stefan: Yes, but most Americans don’t care about legal judgments. They’re quite happy if some random Ay-Rabs get bombed flat in retaliation, regardless of guilt or innocence. That way, they can display new magnets on their cars, new foam fingers at the high school football games, and fresh flags on their lawns.
Mnemosyne
@Zifnab:
You do realize how nonsensical this sentence is, right? The Republicans are right when they complain about an impending military dictatorship even though the impending military dictatorship from Obama is doing exactly what the Republicans want? Huh?
Again, when the bill to block Gitmo detainees from being brought to the US for civilian trial passes the Senate 98-0 , it’s pretty hard to claim that this is all the president’s fault. At least there will now be some kind of legal proceedings rather than leaving everyone locked up indefinitely without any kind of trial.
Chris
@Mart:
I just want to point out that to “the rest of the world…” I think Gitmo hardly matters. And that’s especially true in the Middle East.
If the people of Iraq or Afghanistan or neighboring countries heard tomorrow that we’d closed Guantanamo prison for good and sent all its prisoners to civilian courts, I suspect the answer would be “big deal.” What about Bagram and the other military-run prisons we have in occupied countries, where conditions have been reported to be even worse than in Gitmo? What about everything else coalition forces do on a regular basis, whether it’s officially sanctioned (night raids, UAV strikes) or just done at the soldiers’ own initiative (the looting that reportedly was routine during night raids)? What about memories like the assault on Fallujah?
In terms of our world image, I hate to say it, but Gitmo is a drop in the ocean. That doesn’t mean we shouldn’t try and close it, but I think hardly anyone in the Middle East would change their opinion of us based on that, even if we did succeed.
wengler
As an elite political matter, Guantanamo matters because it furthers the war narrative. If the terrorist attacks are crimes tried in regular court, then the government can’t go kill or kidnap anyone they want any place on Earth.
It wouldn’t surprise me if the whole “closing Gitmo” thing was just a bunch of political theater. It allowed Obama to appear to keep a campaign promise to prominent supporters, while also maintaining a legal black hole in which to put inconvenient people.
Ija
@eric:
The NYT is calling it hearsay, not me. That second paragraph should have been inside the block quote also. Sorry for the misunderstanding.
I don’t actually know if it is hearsay or not. My understanding of the law is mainly derived from Law and Order and CSI, so, obviously pretty useless.
Frank Chow
About that whole reading the Constitution …
JPL
Anyone else sick of magical thinking? If the President had gumption he would have all detainees moved to the United States now. In fact just transfer them using air force one. Forget the ramifications that our society would have to endure when the senate, house and executive branch went republican. When the Supreme Court said Gore lost, many said it didn’t matter. Tell that to the Roberts court.
Davis X. Machina
Absent magical thinking, damn little thinking would get thunk at all.
300 million Americans, and enough of them think that pushing the elevator button multiple times makes it arrive sooner to elect a government.
That’s what we’re up against, people. Take the stupid and the points. The stupid doesn’t always win, but it always covers.
Chris
@wengler:
I think that’s pretty much what Gitmo is, yes.
@Davis X. Machina:
I’m being judged here, I just know it.
Davis X. Machina
@wengler:
Yet Jane Hamsher still walks free. What’s up with that?
Omnes Omnibus
@Chris:
As well you should be. Pushing the button multiple times just angers Otis the elevator god and who causes the elevator to move slowly and stop at every floor.
Chris
@Omnes Omnibus:
I think Otis lives in the service elevator at my work place. Too bad there’s not an exorcism procedure for gods.
ThatLeftTurnInABQ
@JPL:
@Davis X. Machina:
These are the days of miracle and wonder
This is the long distance call
The way the camera follows us in slo-mo
The way we look to us all
The way we look to a distant constellation
That’s dying in a corner of the sky
These are the days of miracle and wonder
And don’t cry baby, don’t cry
Don’t cry
We are stardust and stupidity in equal measure, and it doesn’t get any better than this. Probably ought to make the most of it while we can. Fucking hairless apes.
Oscar Leroy
Because the president has no choice. No choice! They forced him to do it!
El Cid
@Chris: This is the problem. The rest of the world has almost always paid attention to what the US is doing, not necessarily just one or two symbolic aspects.
Guantanamo was a very important symbol, though. It wasn’t just because of what happened there. It was it was particularly colorful intentional show value, with the cages and the orange suits and the ‘heh heh’ discussion of various rough treatments.
The other sites, whether ‘covert’ or not, didn’t trumpet their difference with clownish displays.
Oscar Leroy
@Chris:
“If the people of Iraq or Afghanistan or neighboring countries heard tomorrow that we’d closed Guantanamo prison for good and sent all its prisoners to civilian courts, I suspect the answer would be “big deal.””
http://www.boston.com/news/politics/politicalintelligence/2009/01/obama_orders_gu.html
Oscar Leroy
Did Congress make Obama do this too?
http://www.guardian.co.uk/world/2010/dec/16/bradley-manning-health-deteriorating
It sure is heartwarming how much our nation’s chief law enforcement officer cares about human rights.
burnspbesq
@sukabi:
“what makes the PTB think that others can’t try us for “war crimes”…”
When you figure out a way to deliver Bush and Cheney to The Hague, do let us know.
joe from Lowell
@Face:
Hamden vs. Rumsfeld declared that military tribunals as they were being operated under the Bush administration were in violation of the Constitution, not that military trials per se were unconstitutional.
Even the Geneva Conventions allow for trials by military tribunals for people who are detained in wartime and charged with war crimes. They say that the accused must be tried before “regularly constituted tribunals” that provide for the same rights and procedures as the tribunals the detaining party uses to try its own soldiers who are accused of crimes. The Nuremburg Tribunals were military tribunals.
It’s the rules of the tribunals that matter most here. No doubt, whatever rules the Obama administration comes up with end up in front of the Supreme Court, too.
joe from Lowell
@Pangloss:
Look, I only have enough cranial volume to keep track of one branch of government, and I WANNA HATE OBAMA, DAMMIT!
He’s the Presnit, dammit!
janinsanfran
The political winds now seem to dictate the content of law and justice.