Unclear. Remember, prior to Obama placing Leon Panetta at the head of the CIA and Dennis Blair as DNI, making the order to shut down Gitmo and outlawing torture and extraordinary rendition, there was press coverage speculating that Obama was going to keep Michael Hayden at the CIA and Mike McConnell as director of national intelligence. Obama ordered Gitmo shut down and outlawed torture within days of being inaugurated. Prior to releasing the torture memos, we heard Obama was going to heavily redact the details of the methods used. That turned out not to be true as well.
So I would take with a grain of salt reports that Obama is simply going to revise Bush's military commissions, which fall far short of the standard set by civilian courts and are stacked in favor of the prosecution. It's also worth noting that without the sort of incentives one finds in a civilian court, the handling of evidence in the military commissions was reportedly haphazard and disorganized.
Still, some of the things we've seen recently make me think we could end up with is a hybrid system, something the administration may have been hinting at for a while now. Attorney General Eric Holder spoke at West Point on April 15 and said this:
There are some detainees who we will likely conclude no longer pose a threat to the United States and can be released or transferred to the custody of other countries. There are others who we will decide to prosecute in federal court. But a third category of detainees poses a harder question – much harder. If a detainee is too dangerous to release, yet there are insurmountable obstacles to prosecuting him in federal court, what shall we do?
At a Senate hearing last week, Defense Secretary Robert Gates posed the exact same rhetorical question, asking, "What do we do with the 50 to 100 — probably in that ballpark — who we cannot release and cannot try?” At the same time, the fate of Ali Saleh Kahlah al-Marri would seem to contradict this entire premise. In a statement accompanying the announcement of al-Marri's guilty plea, Holder said the outcome reflected "what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.” The revival of the military commissions would seem to constitute a "waver."
What I think we're likely to end up with, given the way the administration has been laying the rhetorical groundwork, is a system where we release a number of detainees, try some of them in federal court, and try the third category that Gates and Holder are referring to in revised military commissions. What's unclear to me is how they can reconcile revised military commissions with detainees' right to challenge their detention in U.S. Courts, which has recently been reaffirmed at Bagram as it was at Guantanamo.
Maybe military commissions are appropriate in some circumstances -- I don't know. But if they are being revived not because they're appropriate but because we don't have the evidence to convict detainees otherwise, either because it's simply not there or it was coerced through torture ... It's pretty hard to call that "justice."
-- A. Serwer
