Tinkering with tyranny

In a recent statement President Obama has pledged to continue the use of military commissions for detainees in Guantanamo, albeit reforms proposed by the Obama administration are said to respect the rights of the accused and maintain the rule of law.

Candidate Obama decried the commissions as "enormous failures" and harsh Bush-era criticisms in main-stream press labeled the "kangaroo courts" as clear perversions of justice. Moreover, candidate Obama stated unequivocally that the standard legal avenues--courts and the Uniform Code of Military Justice--would be sufficient in keeping Americans safe. Despite condemnations, President Obama has opted for the pragmatic approach in refining the existing military commissions.

The reforms, if we are to take them at face value, are substantial:

The extra safeguards for detainees include a ban on evidence obtained by harsh interrogation; restrictions on hearsay evidence; giving detainees more leeway to choose their own lawyers and protecting detainees who refuse to testify, the statement said.

With a broad spectrum of legal voices--including Glen Greenwald and the former candidate Obama--trumpeting the ability of the existing legal framework to handle sensitive national security cases, one begins to wonder where exactly the need for military commissions comes from.

Originally:

Military commissions have been around since the Revolutionary War. But they've always been used to try spies that we find behind enemy lines. It's normally a situation, you're on the battlefield, you find an enemy spy behind your lines. You can't ship them to national court, so you provide a kind of rough battlefield justice in a commission. You give them the best process you can, and then you execute the sentence on the spot, which generally means executing the defendant.

Ultimately these 20 or so detainees are more a matter of optics than of national security concern. But optics of an executive acting, in the words of William Safire, "as investigator, prosecutor, judge, jury and jailer or executioner," are not good. Obama needs to proclaim, unequivocally, that he will not waiver or compromise in his repudiation of Bush's perversion of the rule of law. But to do this would mean more than the hyperbolic value-laden language of American principle, this would mean actually employing the existing legal structure that remains the envy of the world.

To compromise with refined military commissions fundamental undermines the independent and impartial rule of law. If these detainees dubious charges will not stand in an American courtroom, then they are to be dropped. The Obama administration may not get the harsh convictions it aspires for using the just system, in which case they would likely face the frivolous criticism of 'coddling terrorists'--but to tinker with the tyranny of military commissions as a means to achieving those politically advantageous ends is still tyranny.

Greenwald put it best:

What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don't trust our own justice system, that we're willing to use sham trials to imprison
people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.