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Obama's Sin of Commission?

I've been quick to point out when I thought President Obama was violating his own stated principles, whether it was by joining in the torture cover-up, invoking spurious executive powers, blinking on the banking crisis, overreaching in Aghanistan, or being insufficiently sensitive to civilian casualties.

But I'm not convinced, at least not yet, that Obama's announcement Friday that he intends to use a reformed military commission process for a small number of detainees actually constitutes a reversal -- or a betrayal.

While Obama strongly condemned military commissions as constituted by the Bush administration -- and spoke of the need to try terror suspects in regular courts -- he didn't actually rule them out in theory.

And it seems to me that before we get into too much discussion over the political ramifications of his decision, we should explore its rationale.

Basic justice requires that terror suspects be given a fair hearing where they can confront the charges against them; that they not be held without some sort of publicly defensible legal determination; that evidence obtained through torture has no place in a civilized judicial process; and so on. By these standards, among many others, Bush's military commissions were nothing less than kangaroo courts and an international embarrassment. Experts say the majority of people being detained at Guantanamo even now have absolutely no business being there.

But -- especially after the monumental mess the Bushies made of things -- it's not hard to imagine a situation in which a federal court's procedural rules could well render prosecutors incapable of presenting what would otherwise be a compelling argument that someone presents a sufficient danger to the country that they should be kept detained until the threat is past.

I don't have a problem letting some criminals go free if that's the price we pay for a domestic justice system that is fair and prevents prosecutorial abuse. But to be honest, I'm a little more worried about letting some terrorists go free. The downside seems much higher. So must terror suspects be granted every single protection to which American citizens are legitimately entitled?

Michael D. Shear and Peter Finn write in The Washington Post: "Inside the administration, the debate over the military commissions was rigorous, with Obama eventually siding with the generals and other military officials who feared that bringing some detainees before regular courts would present enormous legal hurdles and could risk acquittals.

"That argument, presented to Obama by his top national security aides, prevailed over Justice Department prosecutors' assertions that federal courts or long-established military courts-martial could ensure the swift and successful prosecution of captured terrorism suspects, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks."

But Shear and Finn note: "FBI teams that reinterviewed Mohammed and 13 other high-value detainees transferred to Guantanamo to obtain fresh testimony, free from the taint of earlier coercive interrogation, did not provide Miranda warnings to those detainees. Some in the administration argued that the failure to do so was a major barrier to shifting some cases to federal court."

Nothing the administration said, however, could soothe the anger of civil libertarian and human rights organizations. "White House counsel Gregory B. Craig led a conference call [Friday] afternoon with human rights groups to explain Obama's reasoning. But most participants said they left the conversation unconvinced," Shear and Finn write.

"'I did not hear him make the case why commissions are necessary,' said Elisa Massimino, the executive director of Human Rights First. 'They seemed fixated on making the case that this is not inconsistent for Obama. But I heard nothing on why this is part of a smart counterterrorism strategy.'"

Obama's decision earlier last week to block the release of pictures showing abuse of detainees -- which I consider inexcusable and inexplicable -- is quickly being lumped together with the latest decision -- a potentially tempered response to reality -- as proof positive that Obama is tacking to the center and abandoning his liberal friends and their approach to terror.

David E. Sanger writes in the New York Times that the two decisions "are the most graphic examples yet of how he has backtracked, in substantial if often nuanced ways, from the approach to national security that he preached as a candidate, and even from his first days in the Oval Office...

"Faced with the choice of signaling an unambiguous break with the policies of the Bush era, or maintaining some continuity with its practices, the president has begun to come down on the side of taking fewer risks with security, even though he is clearly angering the liberal elements of his political base."

William Glaberson writes in the New York Times: "The decision benefits the administration politically because it burnishes Mr. Obama's credentials as a leader who takes a hard line toward terrorism suspects."

Christi Parsons and Janet Hook write in the Los Angeles Times: "Unlike his predecessor, George W. Bush, who styled himself as 'the Decider' and took pride in sticking with decisions come what might, Obama is emerging as a leader so committed to pragmatism that he will move to a new position with barely a shrug.

"Whether it's a long-standing campaign promise or a recent Oval Office decision, Obama has shown a willingness to reverse himself and even anger his most liberal supporters if he can advance a higher-priority goal or avoid what he sees as a distracting controversy."

Dan Balz writes in The Washington Post: "The decisions underscored an important facet of Obama's decision making, which is his capacity to rethink positions and to change his mind as he learns more or conditions change. And he tends whenever possible to seek consensus. Those on the left and right often overlook this aspect of his governing style, though it was one of the factors that drew many people during the campaign.

"The other reality that last week's decisions highlighted is Obama's willingness to disappoint his allies, which suggests that he feels he owes no group or groups unduly for his victory. He has sent the same message to organized labor by refusing to push hard for its top priority, the employee free choice act."

Jonathan Weisman writes in the Wall Street Journal: "On everything from national security to climate change to immigration, liberal groups are saying the president's recent actions contradict his soothing ability to convince them that he will move dramatically on their issues. It follows a first 100 days in which Mr. Obama largely avoided any compromises on pressing his economic agenda."

But, as Weisman writes: "White House Chief of Staff Rahm Emanuel said over the weekend that liberal critics were overplaying the extent to which Mr. Obama had changed his views on handling suspected terrorists. He said any compromises on other policies serve the broader purpose of keeping the big priorities moving forward.

"And supporters of the president's more compromising stance say his positions will help liberal causes in the long run."

By Dan Froomkin  |  May 18, 2009; 1:25 PM ET
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Next: Obama's Subversive Critique of Certainty


I think it's a very valid consideration: given the detainment of hundreds of terror suspects at Gitmo, how to make the best of such a bad situation? They weren't apprehended with any thought toward US civil prosecution, so applying US civil standards now would disqualify most. And though many seem to be innocent of any real crime or conspiracy, there do seem to be legitimate terrorists. How to differentiate them?

The concept of a military tribunal, by itself, is not out of the question. Again, most (or all) of these prisoners at Guantanamo were apprehended by military personnel, not US police, outside of the United States. How the tribunals are conducted, and what is the nature of admissible evidence, are the issues. That every prisoner has the right to a representative, and has the right to review all evidence against him (or her), are fundamental.

Of course some, or most, of the information in these cases might be secret. And of course some softer kind of rights for the detainee--short of being mirandized, but disallowing testimony produced by torture--must be decided on. But I do think it's possible to create such a military court which doesn't violate the US' basic principle of an individual's right to defend him- or herself from prosecution.

Posted by: whizbang9a | May 18, 2009 2:00 PM | Report abuse

Trying POWs using military tribunals is actually the international norm. Soldiers from competing forces are afforded the same basic rights that we would grant to our own soldiers in a court martial.

The Bush administration tried to establish a third system of justice, different from our domestic judicial framework, and from the UCMJ. This new system of justice would allow evidence collected through torture, would not allow defendants to hear the evidence presented against them, would provide wide latitude to those running the commissions, and the results of the tribunals would be non-binding.

Basically, kangaroo courts.

Posted by: fletc3her | May 18, 2009 2:15 PM | Report abuse

Perhaps after being in office for a while, looking at the issues.... Obama is discovering that Bush's handling of post 9/11 issues had more merit than the liberal and media left ever gave him credit for.

Perhaps there are things in play that only Obama knows about and cannot divulge to the general public in order to keep terrorism and its advancement on a short leash.

So eventually, Obama will gradually phase-out his campaign promise to end Guantanamo, to the point he earns some respect from the right. I mean he does have 8 more months to spin the issue before his self imposed deadline.

Posted by: alutz08 | May 18, 2009 2:17 PM | Report abuse

Why is your blog today not accessible from WaPo's front page? It's a great one today.

Posted by: lguy1 | May 18, 2009 2:19 PM | Report abuse

"to the point he earns some respect from the right."

Wow, you really do believe your own B.S. I'm sure that "respect" will be taken into deep consideration when they attempt to impeach him.

Posted by: BigTunaTim | May 18, 2009 2:28 PM | Report abuse

Unless you are willing to risk letting the guilty go free, you do not have a fair trial. In general, the sex offender who lives down the street is a greater danger to most Americans than the terrorist in Iraq/Afganistan/Saudia Arabia/Pakistan. The only REAL danger terrorists pose is the risk that they will obtain a nuke. Serious, but not relevant to anyone in Gitmo.

Posted by: dickdata | May 18, 2009 4:44 PM | Report abuse

Excellent comments today... I think whizbang9a and fletc3her are quite right. The important issue is not whether a tribunal is military or civilian, but that it is fair, that the accused have a reasonable opportunity to defend themselves and refute false accusations.

To imprison people who are actually innocent of wrongdoing serves nobody's interests (except those of our genuine enemies). There is always some risk, in any kind of trial except a kangaroo court, that some guilty people may not be convicted, but then there is a potential risk in almost everything. We can't imprison everyone on the planet, simply because any individual MIGHT someday do harm... we have to keep the relative hazards in perspective to have any ability at all to take meaningful action against the greatest risks, and defend ourselves against them.

The chances of being killed by terrorists in the United States is probably still less than that of falling in the shower, or dying from a bee sting (dozens of Americans die every year from insect bites and stings)...not to mention traffic accidents, or "ordinary" crime.

The attack on 9/11 was unprecedented, and the huge loss of life from that attack was, so far as I can tell, unique. That risk cannot be ignored, but if we obsess over it, we may increase other, more substantial risks... and we do ourselves NO good at all if the actions we take to protect ourselves from existing enemies have the result of substantially increasing the number of new enemies.

Posted by: Observer44 | May 19, 2009 12:38 PM | Report abuse

"Inside the administration, the debate over the military commissions was rigorous, with Obama eventually siding with the generals and other military officials who feared that bringing some detainees before regular courts would present enormous legal hurdles and could risk acquittals."

One wonders how any trial could be fair if there is no "...risk of aquittals."

Posted by: shyde1 | May 19, 2009 3:24 PM | Report abuse

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