The Military Commissions Would Be The Problem

They've hinted at this for weeks, and obviously the civil liberties and human rights communities didn't offer enough pushback, so the President is going ahead with modified military commissions to try suspected terrorists, the same commissions he decried as a candidate.

The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system [...]

White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.

"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.

The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement [...]

The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.

The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.

But those changes are widely viewed as cosmetic by critics both in and out of government.

No military judge has allowed evidence obtained through coercion or torture anyway. And these few safeguards did not form the basis of objections from civil liberties groups, as Glennzilla notes today. The problem was taking these cases out of the standard criminal justice system or the Uniform Code of Military Justice and creating a new system outside standard law that during the Bush Administration was correctly seen as nothing but a kangaroo court. If you argue that we need military commissions, you basically argue that the legal system is somehow insufficient to try terror suspects, despite the fact that prosecutors have obtained dozens of convictions for those suspected of terrorism in the past. It creates an authoritarian system that the President can determine to direct at certain suspects but not others. It weakens our legal system overall, by suggesting that it cannot properly try certain sensitive cases. And it would call into question any convictions gained through the process because of their existence outside the normal legal channels, seemingly for arbitrary reasons. Therefore it is not the specifics of the commissions that constitute the problem, but the very fact of the commissions themselves.

If we can use a court-martial system, we should. The message to the Islamic world would be much more powerful if we use the same system to try suspects of terrorism that we use to try our own members of the military. Obama's own deputy Solicitor General, Neal Katyal, explains:

In stating that the rules governing courts martial do not apply to commissions, the administration has placed itself in stark contrast to other administrations. Even in the midst of the Vietnam war, with thousands of dead, President Nixon's Defense Department examined the commissions option and concluded that "the specific protections of the Bill of Rights, unless made inapplicable to military trials by the Constitution itself, have been held applicable to courts-martial. Both logic and precedent indicate that a lesser standard for military commissions would not be constitutionally permissible."

Sen. Kerry's views closely resemble those of President Nixon's Defense Department, whereas (as I have said elsewhere in Slate) President Bush's closely resemble those of King George III. . . .

The danger with these commissions comes not only in their threat to our Constitution, and our standing in the world as a beacon of fairness, but also in their challenge to the perception of military justice. Our nation—whomever the next president may turn out to be—should admit it made a mistake and return to using our powerful and fair system of courts martial—a system that would generate swifter convictions of terrorists. As our nation's great Chief Justice John Marshall put it in 1803, ours is a "government of laws, and not of men."

You either believe in American law or you don't. The President has made his decision.