Thursday, January 20, 2011

Coming Full Circle On Military Commissions

“As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.”

Presidential Candidate Obama, Aug. 1, 2007


In the wake of the debacle that was the trial of Ahmed Ghailani, the Obama administration is apparently going to Plan B. Ghailani was a participant in the 1998 embassy bombing. In a trial before a civlian court, he was convicted on one count, acquited on 284 counts after the judge ruled against admitting the testimony of a key witness because the government had learned about the witness while subjecting Ghailani to enhanced CIA interrogation. Today, the NYT has announced that the Bush Obama administration intends to restart military commissions in Guantanamo in order to try "some" those Gitmo detainees that are awaiting a trial. Finally, change we can believe in.

As to the military commissions, this will not be swift justice. Numerous issues surrounding the admissibility of evidence and the right to confront one's accuser will no doubt eventually end up before the Supreme Court. All of these issues, plus jurisdictional issues, will be raised in what is expected to be one of the Commission's first trials, that of Abd al-Rahim al-Nashiri, the Saudi accused of plotting the Cole attack in 2000. Nashiri was also one of three detainees waterboarded for intelligence information.

As to all of the detainees at Gitmo - all of whom we have a right under the Geneva Convention to detain until the end of hostilities, regardless of whether we subject them to a trial - the administration announced that it is instituting a "parole board" to provide for periodic review of their cases. I strongly suspect that is in response to the Supreme Court's horrid Boumediene decision that gives Gitmo detainees the right to file Habeas Corpus actions in Article III courts. That decision did not provide guidance to the lower courts as to the evidentiary standards and procedures that should be followed, leaving it to the lower court's to determine. This is likely an attempt to effect the federal habeas hearings.

At any rate, you will remember that it was two years ago that Obama signed Executive Order 13492, providing for the transfer of Gitmo detainees to the U.S., the closure of Gitmo and the supension of all trials before military commissions. Such was the moral imperative that he signed the order almost immediately after being sworn in. And it was only last year that the Administration was trolling around for a site to try Khalid Sheikh Mohammed.

Reality has dawned. Break out the popcorn.

Let the left-wing wailing and gnashing of teeth commence.

(H/T Hot Air)

1 comment:

Lisa G in NZ said...

good blog Wolf...

too bad they can't just line up the enemy combatants against a wall and demonstrate rifle marksmanship in their direction...

Note to the field: when in doubt about taking a prisoner, shoot first and ask questions later....

(jes sayin')... (not that this is violent rhetoric or anything...)