NYC Letter: Trust Team Barry, Part V Redux

Day 124 of CHOPE

As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

Mr. Obama,
speechifying at the Woodrow Wilson
International Center for Scholars
August 1, 2007 (americanrhetoric.com)*

That seems plain enough.

OBAMA WANTS TO REINSTATE MILITARY COMMISSIONS
FOR SOME GUANTANAMO BAY DETAINEES

May 15, 2009 (ABC News) - President Obama announced that he will seek to reinstate military commissions for Guantanamo detainees, but with changes to give defendants more rights than in previous military tribunals established under President George W. Bush.

... The American Civil Liberties Union (ACLU) sent out an angry statement Friday, calling the decision a "striking blow to due process and the rule of law."

Tweaking the rules of these failed tribunals so that they provide 'more due process' is absurd; there is no such thing as 'due process light. Despite the administration's efforts to improve the system, the only explanation for reviving it would be to accommodate the damage that has already been done by the Bush administration's policies of torture, illegal detention and denial of fair trials. ... In this case, President Obama would do well to remember his own infamous words during his presidential campaign: you can't put lipstick on a pig.

The Military Commissions Act ("MCA") was an Act of Congress signed into law by President Bush October 17, 2006. This followed the Supreme Court's Hamdan v. Rumsfeld decision, wherein a 5-3 ruling (Chief Justice Roberts recused himself*) the court held:

[T]he military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva Conventions. Four of us also conclude, see Part V, infra, that the offense with which Hamdan has been charged is not an “offens[e] that by ... the law of war may be tried by military commissions.” 10 U. S. C. §821. [p.10]

The MCA was meant to correct these legal shortfalls.

The problem is not the MCA itself, the problem is the lack of a generally accepted idea of just what is a war on terror and how, of necessity, prosecution of such a war is different from conventional war. It seems to us the difference between Ex parte Quirin** and Hamdan v. Rumsfeld is very much the sense of threat. The threat trims legal protections where legal protections protect the threat. No society that argues protections in favor of a particular instance (e.g., the terrorist), forfeiting protections in the general instance (scil., the general population), will long survive.

The sense of threat after 09.11 diminished with each passing year without a recurrent attack. There were no recurrent attacks because Mr. Bush's anti-terrorism policies were a success. However, the diminished sense of threat brought these same policies into dispute.

Which brings us back to Mr. Obama's campaign promise. However Mr. Obama and his ex post facto apologists parse that promise to be consistent with his actions as president, the promise's clear intent was that Guantánamo would be closed without delay and that the prisoners would be folded into the American criminal justice system. But Mr. Obama's campaign rhetoric was built on the very success of the policies it rejected. Now that he is president, Mr. Obama has appropriated these same policies for continued success in keeping America secure.

CHOPE.

Big talk. Hobbled walk.

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* Before his Supreme Court appointment, Justice Roberts had joined in a unanimous decision against Hamdan in the appellate court.

** A legal sticking point is that Quirin was decided July 31, 1942, before the United States ratified the Geneva Conventions on August 12, 1949.