Obama's decision to revive the military commissions is a contradiction of his campaign promise to abolish the military commissions. The AP reports that only 20 of the 241 detainees at Guantanamo will be tried under military commissions. The number is not a significant departure from those tried under Bush.
“Only around 12, were ever even presented with charges before a commission, only 3 were ever convicted," says the ACLU's Jonathan Hafetz. "Even during the Bush administration there was a recognition that only a relatively small percentage were going to be tried by military commission.” Hafetz is also skeptical of the idea that the administration can "save" the commissions by adhering to stricter rules of evidence governing the admission of hearsay, which is not allowed in civilian criminal trials, or the banning of evidence gained from torture. "There will be an attempt to continue to launder coerced evidence through lax hearsay rules. The bottom line is that if they’re claiming to make the military commissions more like the federal court system, why aren’t they using the federal court system?"
The revival of the commissions seems to be directed at the often referred to "third category" of detainees, those whom the government believes are too dangerous to let go but are unable to try. While the Obama administration insists that it will be applying stricter standards of evidence to the commissions, Hafetz says that the revival of the commissions in and of itself is an admission that the administration is attempting an end-run around the Constitution, adding that there's no reason to believe the military commissions would work better than the federal courts.
"The federal criminal system, and the material support for terrorism laws, have proven capable of trying terrorists from low-level supporters to significant players," Hafetz says. "The federal courts have tried dozens in the time that the military commissions have tried virtually none. And they can do it while maintaining a sense of legitimacy, which is crucial to the fight against terrorism."
Obama's decision to revive the commissions is unlikely to settle the issue completely. While it will depend on the individual specifics of each case, the Bourmediene ruling from June of last year that established habeas rights for Guantanamo detainees will likely be the platform through which civil-liberties groups intend to challenge the constitutionality of the military commissions, just as they did under Bush.
Asked whether he thought civil liberties groups intended to challenge the revived Obama military commissions, Hafetz said, “Oh absolutely.”
-- A. Serwer