Thursday, May 21, 2009

"Oceana Was Always At War With Eurasia" of the Day

UPDATE: below -- and another

As expected, President Obama's now made it official and revived military tribunals for Guantánamo Bay detainees. As is becoming a pattern, he did so on a Friday, so that news accounts appeared on Saturday, when few read the news. What to think?

First, the President is unpersuasive in insisting he's not backtracking on a campaign promise. As Ann Althouse says, attempting to appear "he's not exactly like Bush" can't obscure the flip-flop, no matter how loudly the New York Times labels it "nuanced."

Second, though Obama claims to have added significant additional detainee rights that will "restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law," the structure and procedures of Bush's military commissions already included "elaborate protections for war crimes defendants" such as:
-- the presumption of innocence;
-- the imposition of the burden of proof on the prosecution;
-- the right to counsel -- both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one;
-- the right to be presented with the charges in advance of trial;
-- access to evidence the prosecution intends to introduce and to any exculpatory evidence known to the prosecution;
-- access to interpreters as necessary to assist in understanding the proceedings;
-- the right to a trial presumptively open to the public (except for portions sealed for national defense or witness security purposes);
-- the free choice to testify or decline to do so;
-- the right against any negative inference from a refusal to testify;
-- access to reasonably available evidence and witnesses;
-- access to investigative resources as "necessary for a full and fair trial"; and
-- the right to present evidence and to cross-examine witnesses.
Indeed, the protection provided by the previous administration "substantially exceed[ed] those accorded the Nuremberg defendants." Similarly, though Obama vows "statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial," no such statements were admitted in tribunals held to this point. All in all, the Gitmo detainees have been afforded well more basic rights then unlawful combatants are entitled to under treaties and precedent.

I share the conservative snark; I relish the left's embarrassing inconsistencies; I chortle over the New York Times twisting like a pretzel: "The decision benefits the administration politically because it burnishes Mr. Obama’s credentials as a leader who takes a hard line toward terrorism suspects." Four months after the inauguration, the Times' Frank Rich still blames "the Bush mob." The theater critic-turned-political sage must have missed Act 1--spoiler: it was the terrorists!

But, in truth, I'm pleased the President flip-flopped; as Althouse says:
I'm laughing at Obama, but I'm also thanking him for doing the right thing and reasonably tolerant of the way he's tried to save face by pretending he's not doing exactly the same thing Bush did.
Indeed, even Senate Democrats now are scared to support closing the Guantánamo Bay camp or transferring detainees to the United States. Just like the previous Administration.

All good. At bottom, unlike Rush Limbaugh, I'd prefer that America survive even if it means Obama succeeds. Because there's always the next election.


Kirsten Powers in today's New York Post:
Democrats are saying they still want to close the prison, but they need to hear a plan from President Obama. So, today, Obama will give a speech outlining a "hefty part" of his plan for Gitmo.

But unless he is going to provide spine transplants to the Democrats, Obama is looking at an uphill battle.

What's perhaps the most troubling about Dem behavior on the Hill is that while they screamed about closing Gitmo, they seem never to have considered where the prisoners would go.

Karl Rove in the May 21st Wall Street Journal:
These reversals are both praiseworthy and evidence that, when it comes to national security, being briefed on terror threats as president is a lot different than placating and Code Pink activists as a candidate. The realities of governing trump the realities of campaigning.


Assistant Village Idiot said...

This is a plus/minus for me. I am pleased that Obama gets it when confronted with the actual security briefings and real choices. I remain irritated that he was elected on the basis of dishonest statements.

@nooil4pacifists said...

Irritated, yes. But still alive. And so--along with you and Rove--able to disseminate and discuss his dishonesty.

OBloodyHell said...

> -- the right to counsel -- both to a military lawyer provided at the expense of the American taxpayer and to a private attorney if the combatant chooses to retain one;

Carl, please explain this one. I thought one of the issues with Gitmo was that it potentially denied the above, at least in "the attorney of your choice", as a result of the Lynne Stewart problem --- or is this a limitation: you can have a private attorney but the government gets to say "no"?

I'm sure you're completely correct somehow, I just want to understand where my perception, or my interpretation, is incorrect.

@nooil4pacifists said...


Under the Military Commissions Act of 2006 (Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006)), enacted in response to the Supreme Court's Hamdan v. Rumsfeld decision, the detainee's right to counsel is addressed in the provision codified at 10 U.S.C. Section 949c(b):

"Defense Counsel.--(1) The accused shall be represented in his defense before a military commission under this chapter as provided in this subsection.
(2) The accused shall be represented by military counsel detailed under section 948k of this title.
(3) The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel--
(A) is a United States citizen;
(B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
(D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings. . .

(5) If the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel."