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Military Commissions, Detainee Policy and Obama: Why the Wall Street Journal has it wrong

A previous post discussed the decision by the Obama Administration to revive and revise the system of military commissions created during the Bush Administration. In that post, I indicated that my preference would have been to take another look at the regular system for Courts Martial under the Uniform Code of Military Justice, but noted that we should reserve final judgment until we see the revised rules. My point was that we cannot evaluate the new scheme until we see the exact revision.

But it seems that the lack of the new rules has not stopped various pundits from concluding that Obama’s decision reflects an approval of the policy of the previous Administration. For example, today’s Wall Street Journal notes:

President Obama’s endorsements of Bush-Cheney antiterror policies are by now routine: for example, opposing the release of prisoner abuse photographs and support for indefinite detention for some detainees, and that’s just this week. More remarkable is White House creativity in portraying these U-turns as epic change. Witness yesterday’s announcement endorsing military commissions.

White House officials insist that their tribunals will be kinder and gentler, stressing additional due-process safeguards for terrorists on trial for war crimes. But the debate that has convulsed the political system since 9/11 isn’t about procedural nuances. It has been over core principles, with Democrats decrying a “shadow justice system” and claiming that “Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.”

The latter quote is from a speech by Senator Obama in 2007 denouncing “a legal framework that does not work.” He also referred to the civilian criminal justice system and courts martial that Democrats then claimed, and many still claim, are the right venues for antiterror prosecutions. After the Supreme Court’s Boumediene decision gave terrorists habeas rights, Mr. Obama again laid into the Bush Administration’s “legal black hole” and “dangerously flawed legal approach,” which “undermines the very values we are fighting to defend.”

At least some people in the White House must now be embarrassed by their boss’s switcheroo, though you can’t tell from Friday’s declaration. Part of the tribunal face-lift is that “the accused will have greater latitude in selecting their counsel.” Say what? Enemy combatants already have better access to attorneys — white shoe and pro bono, no less — than nearly every criminal defendant in America. Perhaps this means Khalid Sheikh Mohammed, 90 Yemenis and the rest will now be able to choose lawyers from both Shearman & Sterling and Covington & Burling, instead of one or the other.

Another red herring is supposedly tightening the admissibility of hearsay evidence. Tribunal judges already have discretion to limit such evidence, and the current rules are nearly indistinguishable from those of the International Criminal Court. The sensible exceptions involve evidence obtained under combat conditions or from foreign intelligence services, which are left untouched by Mr. Obama’s nips and tucks.

In any event, Mr. Obama deserves credit for accepting that the civilian courts are largely unsuited for the realities of the war on terror. He has now decided to preserve a tribunal process that will be identical in every material way to the one favored by Dick Cheney — and which, contrary to the narrative that Democrats promulgated for years, will be the fairest and most open war-crimes trials in U.S. history. (emphasis added)

How can the editorial board at the Journal make that claim? We don’t yet know the specific rules of the new commissions. It is impossible to claim that scheme for revised commissions will be “identical in every material way to the one favored by Dick Cheney.”

But even beyond this specific assertion, it is troubling that the Journal is essentially in I-told-you-so mode. It should not be forgotten that the Obama Administration has explicitly refuted many of the specific policies of the Bush Administration. Waterboarding has been called torture by the Attorney General. All Office of Legal Counsel memos from Septbember 11, 2001 to January 20, 2009 were set aside. And all interrogation methods were placed under the limitations of the Army Field Manual.  These were significant changes.

What actually bothers me the most right now is that it is still taking much time to get the key players in the Administration confirmed. In order for the Administration to be able to fully address the challenges posed by detainees and other aspects of terrorism, we need people at Justice, State, and DoD. I hope both the Executive Branch and the Congress can move more quickly to that end. In particular, I hope that Dawn Johnsen– the appointee for OLC–  and Harold Koh– the appointee for Legal Advisor at State– can be approved by the Senate. They are both outstanding candidates. There are no good reasons to oppose either of them, and we desperately need those position to be filled.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.