President Obama revives the 'kangaroo court'

Are President Obama's Military Commissions, due to start this week, really any different from those designed by the Bush Administration?

Reprieve was dismayed by President Obama’s decision to resurrect 'kangaroo court' military commissions to try prisoners at Guantánamo Bay.

The Bush-era commissions are now acknowledged to have failed miserably. Even with President Obama’s tinkering, they remain structurally dysfunctional and incapable of delivering meaningful justice.

Here at Reprieve, we see no legal reason why the prisoners from Guantánamo cannot be processed in the American criminal court system. As Clive Stafford Smith has said, it is a sad day for U.S. justice when the President refuses to trust American courts with matters of law.

And at one point, President Obama held a similar view. During his presidential campaign, Senator Obama's team made the following statement about about the Bush Administration's military commissions:

“The legal framework behind Guantanamo has failed completely, resulting in only one conviction. As president, Barack Obama will close the detention facility at Guantanamo. He will reject the Military Commissions Act, which allowed the U.S. to circumvent Geneva Conventions in the handling of detainees. He will develop a fair and thorough process based on the Uniform Code of Military Justice to distinguish between those prisoners who should be prosecuted for their crimes, those who can’t be prosecuted but who can be held in a manner consistent with the laws of war, and those who should be released or transferred to their home countries.”

- “Obama’s Plan To Defeat Terrorism Worldwide”, Obama ’08 campaign publication, undated

Then, in an apparent turnaround, President Obama announced his decision to reinstate the tribunals on 15 May 2009, saying:

“Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time. Indeed, the system of Military Commissions at Guantanamo Bay had only succeeded in prosecuting three suspected terrorists in more than seven years.

“Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings. We will seek more time to allow us time to reform the military commission process. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.

“These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law. In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values.”

So what has changed? There are five key amendments that President Obama has specified for the new military tribunals. They are:

1. Statements made by detainees under torture will no longer be permitted; the President says “cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial”;

2. The allowance for hearsay will be limited;

3. Detainees will have more choice when selecting their defense lawyers;

4. Detainees will protected if they choose not to testify; and

5. “Military commission judges may establish the jurisdiction of their own courts.”

Last Tuesday, senior Justice and Defense Department officials expanded on the planned revamp in testimony to the Senate Armed Services Committee. But they still left several aspects of their plans unclear. 

Hazy areas included the standards by which a statement from a detainee could be introduced into evidence; the criteria by which a detainee would be tried in a military commission as opposed to a federal civilian court; where the commissions could be held; and whether an acquitted detainee could be released into the continental United States.

After years of working with these bizarre commissions, it is clear to us that they simply do not work, and unfortunately, it is not clear that the new administration's proposals even begin to address their failings.

Our Legal Director Zachary Katznelson put it best when he said:

"As a constitutional lawyer, Obama must know that he can put lipstick on this pig - but it will always be a pig."