There is a growing concern among those of us who believe in the rule of law that Obama will retreat on the central promise of his campaign to restore the rule of law in trying the Gitmo detainees. The NYT is reporting this morning that the administration is increasingly leaning towards keeping the military commission system that Bush had set up and that Obama criticized harshly during his campaign. Anonymous sources within the administration say that the reason why they might keep the commissions is because our federal court system would make it difficult for the government to convict?
Obama is kidding right? What kind of an argument is this? The government thinks the cards are stacked up against it in the court of law, so it will create its own more favorable law universe? This is completely unacceptable! The federal court system IS our rule of law and the government has no legal authority to shortcut the law in order to win a case. I mean, this is what the rule of law is all about!
The administration's increasing disenchantment with the idea of the federal courts trying the Gitmo suspects is due to two main reasons: 1) federal judges do not allow evidence obtained under torture; and 2) hearsay evidence is not permitted. Both of these supposed weaknesses of our federal court system is what makes our rule of law uniform for all human beings no matter what crimes they are accused of! So, if we tortured the suspects in order to obtain "evidence" from them, we committed a war crime and if we do lose the case, then we lose the case. The consequent release of the suspects would be the result NOT of the supposed weakness of our courts, but to our own crimes! Secondly, when it comes to hearsay: this only shows the weakness of our government's case against many of these detainees. Keep in mind that according to a study done a few years back (and which I cited on this blog before) only 5% of Gitmo suspects had known Al-Q links and most of them were captured by Pakistani warlords in exchange for generous bounty our soldiers were offering. So, admitting hearsay evidence in this case is a total betrayal of the very ideal of the rule of law of which we boast so often.
Obama would be betraying his oath of office if he allowed these commissions to continue and would seriously undermine our claim to be the nation of laws. Military commissions should be disbanded, and all suspects tried in the court of law, not some made up "court of law," but our federal court system.
The government has NO CHOICE but to follow the law come what may!
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3 comments:
hi Fedja, Gitmo and everything it stands for is unconstitutional and should be closed. I just finished reading an article that was in today's New York Times that's saying that President Obama is considering implementing a "preventative detention plan."
Here's the link to the article.I just don't understand why Obama would want to "establish a legal basis for the United States to incarcerate terrorism suspects who are deemed a threat to national security but cannot be tried..." (Source is the above New York Times article that I provided the link to.)
If they these terror suspects have committed a crime, then we should have them arrested and give them a fair trial. That's how law and justice work in the U.S. according to the constitution. If they can't be tried, does that not mean there wasn't sufficient evidence for them to be arrested and charged? And if there's not sufficient evidence for that, why would be want to detain and incarcerate them? This goes against everything the United States stands for and certainly sounds unconstitutional.
Our constitution is the most sacred of our laws under which we all (presidents included) must abide.
I'm extremely disappointed. I was looking forward to change...not more of the same.
I completely agree with you: if the government has enough evidence to incarcerate these people that means that the evidence would supposedly hold up in the court of law, so they should be tried and released if acquitted.
Obama is arguing that in some cases evidence is either obtained through hearsay (inadmissable in a court of law)or coercion (i.e. torture in the case of Bush era policies). In these cases, he wants to reshape the military tribunal, giving them some rights but not all. I strongly disagree with this policy.
And you are right, preventative detention plan flies in the face of the very idea of American justice. It is simply unacceptable.
I still think that Obama's policies are a sharp break from the Bush administration, but still not a complete break.
After I wrote this reply to you last night, Fedja, I saw the Rachel Maddow show and she addresses this in one of her segments.
Here's the link in case you missed it.
Interesting that in one night I read your blog discussing "Obama and the rule of law, then read that New York Times article, and finally hear Maddow's segment. I'm glad this is being discussed by the mainstream media, although I had hoped that issues like this ended when Bush left office. :(
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