Wrong way, go back

Graphic courtesy of lazyevaluator via Flickr

File it under going down the wrong damned path, again. The New York Times is reporting that the Obama administration is preparing to lift the ban on new military tribunals at Guantanamo Bay. Shortly after he was inaugurated President Obama directed Defense Secretary Gates to order a freeze on new indictments for detainees at our national shame of a prison camp. The intent was two fold, one to review the incredibly slipshod cases against the men held there and to allow for the planning to begin closing the prison camp.

Nearly two years have gone by and while the review of cases has been done, we are no closer to closing the camp than when President Bush was in office. It is not completely the fault of the President that the camp has not closed. There has to be funding to move and house the detainees (they aren’t prisoners because they have not been convicted of anything) somewhere else and the Congress has shown just how lily-livered they are by consistently voting against funding to do exactly that.

Which is not to say that the Executive Branch is doing the right thing either. It seems that one of the first people to be charged, perhaps within weeks of ending the ban is one
Abu al-Rahim al Nashiri who is accused in planning the bombing of the U.S. Cole in 2000. If that name sounds vaguely familiar it is because Mr. Nashiri is the third known person to have been tortured by use of waterboarding by the United States government.


Although he was not tortured as many times as Khalid Sheik Mohammed or Abu Zubaydah he was the third man named as by CIA Director Michael Hayden. Part of why he will be tried in a military tribunal is fear that evidence in the case would be thrown out due to this torture.

There have always been problems with the military tribunal system one of the major ones is that unlike Federal courts the tribunals allow the admission of hearsay evidence. This allows the government to proceed with a case based not on the first hand testimony of actual witnesses but the sworn statements of government investigators. As anyone with the reasoning skills of a fifth grader can see that puts any defendant at a huge disadvantage and circumvents the Constitutions provision for facing and questioning your accusers.

Another flaw which might make this whole exercise moot is that the crime which Mr. Nashiri is accused happened in 2000 well before the attacks of 9/11 which lead to the Authorization of Military Force resolution. Basically this means that the United States was not in a state of war against Al Qaeda at the time of the Cole bombing and a military tribunal may be inapplicable to him.

The Justice Department (does anyone else find that name ringing more and more hollow lately?) argues that since Osama Bin Laden declared war against the United States in 1996 there was a de facto state of war. Again that pesky Constitution gets in the way, since there has to be an act of Congress for a state of war to exist.
Given the political environment it is entirely likely that the man in charge of overseeing the tribunals, retired Vice Admiral Bruce MacDonald, has the power to charge Mr. Nashiri with a death penalty offense in the killing of the 17 sailors who died in the bombing of the Cole.

So there we have it, the state of the U.S. system of justice in regards to the so-called War on Terror. We may charge a man who we tortured and held without council in a secret C.I.A prison, with a capital crime. We will use a trial system that does not allow him to confront the witnesses against him directly, and if he is found guilty we may very well execute him.

What you will most likely hear from the Obama Administration and the DOJ on this is that Congress has tied their hands. They have no way of funding moving him to the U.S. for trial in the federal system and given that they are doing the best they can to see that justice is served by not just keeping him detained indefinitely without charge. The problem with that, of course, is the stated intent of the Obama Administration to hold without charge or trial as many as 50 other detainees. If you have already determined to violate the Constitution in this manner why bother with the flawed military tribunal system at all?

To me the indefinite detention of captured and accused terrorists is nearly as destructive to our system of law as the unprosecuted torture of prisoners. Of course it is all part and parcel of the criminal Bush administrations actions, but the continued pursuit of the path they laid out will lead us to a time and place where hearsay can convict you and being accused of a crime is enough to keep you locked away for the rest of your life.

There are times when I stand up for what the president has done and continues to do. This is an area where I am in complete disgust of the apparent haplessness of our current Chief Executive. If this path is followed I fear it will not matter all the good he accomplishes, history will remember him for the man that did not bring us back from the lawless excesses of the Bush administration, but rather the one that allowed those excesses to become the new normal.

The floor is yours