Again, Barack Obama changes his mind and does a complete reversal of doing what he said he would do. Surprised? You shouldn’t be. This is the “change you can believe in”.
In a Reversal, Military Trials for 9/11 Cases
By Charlie Savage
WASHINGTON – The Obama administration, ending more than a year of indecision with a major policy reversal, will prosecute Khalid Shaikh Mohammed and four other people accused of plotting the Sept. 11 terrorist attacks before a military commission and not a civilian court, as it once planned.
Attorney General Eric H. Holder Jr. announced on Monday that he has cleared military prosecutors at Guantánamo Bay, Cuba, to file war-crimes charges against the five detainees in the Sept. 11 case.
Mr. Holder had decided in November 2009 to move the case to a federal civilian courtroom in New York City, but the White House abandoned that plan amid a political backlash.
Of course this decision is being praised by the fear mongering cowards like Sen. Chuck Schumer (D-NY) and Sen. Lindsay Graham who opposed the trials being held in New York City because it was too dangerous, major trials are too expensive, too many secrets will be spilled, public trials will radicalize the enemy, the public doesn’t want it and on and on.
This has been handled badly by Holder from the start. Instead of meeting with NYC officials, the mayor, police commissioner, etc, before he announced his plan last year to hold civilian trials in the city, the announcement came with little warning and no discussion. Of course they were all taken aback. There were hundreds of questions and no answers from the Obama DOJ. “Don’t worry, I’ve got this” is the typical Obama response to any concerns. Now Obama and all the his loyal supporters are laying the blame on congress for passing a bill that refused to fund the closing of Guantanamo and prevented bringing any of the detainees to the United States for trial. But did they challenge this law in the courts as being unconstitutional restriction on the ability of the Justice Department to prosecute these men fairly? No, Obama and Holder did not. Instead, as is typical of this administration, they dithered for a year and then caved.
Dahlia Lithwick roundly criticizes this decisions that creates a “two-tiered system of justice”.
Of course, exactly the same unpersuasive claims could have been made about every major criminal trial in Western history, from the first World Trade Center prosecution to the Rosenberg trial to the Scopes Monkey trial to Nuremburg. Each of those trials could have been moved to some dark cave for everyone’s comfort and well-being. Each of those defendants could have been tried using some handy choose-your-own-ending legal system to ensure a conviction. But the principle that you don’t tailor justice to the accused won out, and, time after time, the world benefited.
But make no mistake about it: It won’t stop here. Putting the administration’s imprimatur on the idea that some defendants are more worthy of real justice than others legitimates the whole creeping, toxic American system of providing one class of legal protections for some but not others: special laws for children of immigrants, laws for people who might look like immigrants, different jails for those who seem too dangerous, special laws for people worthy of wiretapping, and special laws for corporations. After today it will be easier than ever to use words and slogans to invent classes of people who are too scary to try in regular proceedings.
There may also be some ulterior motive for thees military commissions since the rules of evidence are different than in a civilian court that would exclude any evidence obtained through torture and the fruit of that poisoned tree. The National Association of Criminal Defense Lawyers released a statement titled The National Association of Criminal Defense Lawyers “At Guantanamo, “Detainees Are Presumed Guilty” that enumerates the faults of these commissions despite the so-called revamping :
“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “
David Kaye at FDL gives some interesting argument for what may well have been a ruse by this administration that intends to use the tribunals as a propaganda tool and never challenged congress.
What no commentator has stated thus far is the plain truth that the commissions’ main purpose is to produce government propaganda, not justice. These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.
Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to.
This is such a farce that further exploits the victims of 9/11 when Holder dared claim “today’s decision as one of fairness to the 9/11 victims, who should have to wait no longer for their day in court”. Really? Then what took them two years? Human Rights First’s Daphne Eviatar said
True respect for the 9/11 victims would have meant bringing the men suspected of the most heinous attack on U.S. soil in American history to trial in a public U.S. federal courthouse, for the victims and all the world to see. It would have meant securing solid verdicts that wouldn’t later be vulnerable to reversal by the Supreme Court, as would their convictions in a military commission. It would have meant presenting the voluminous evidence that prosecutors had amassed over the past decade detailing the crimes that each man had allegedly plotted and carried out. And it would have meant showcasing that the United States not only preaches about the importance of the rule of law around the world, but actually believes in and follows it here at home.
But the administration had more than two years during which it could have transferred these men to federal courts and begun their prosecutions, and it didn’t. If the administration had moved these cases forward when it had ample opportunity, the convictions and sentences would likely have already been pronounced. Military commissions trials, meanwhile, will take at least twice that time to resolve, with the very possible result that either conviction or sentences will be overturned, given the commissions’ shaky legal grounding.
There is no excuse for the tribunals. Human Rights First point out the fact that “civilian federal courts have have convicted more than 400 terrorists since the 9/11 terrorist attacks. The discredited military commissions at Guantanamo Bay have convicted only 6, almost all via plea bargains that resulted in much lighter sentences due to the shaky legal ground of many of the military commission charges and procedures”.
Obama is determined to continue with the Bush policies that have taken this country down the path that covers up war crimes and makes a mockery of our justice system.