Here Comes The Judge; Gitmo Military Commissions Redux

It has now been a little over a month since we learned just how far over the due process rule of law cliff the Obama Administration has gone with regard to politicization of the DOJ prosecutorial function in relation to terrorist trials. That striking realization came courtesy of Jane Mayer’s and Josh Gerstein’s respective reports on the Rahm/Obama negotiations with Lindsay Graham to go strictly with military commissions and Eric Holder’s seeming resignation that such may indeed be the case.

There are two new developments that would seem to indicate the Obama Administration is indeed moving toward capitulation to the neocon howlers on the issue of military tribunals over civilian trials. First, from Main Justice comes word that the Graham/Emanuel deal is looking like it is on and Graham has finalized his proposal on terrorist detentions and trials band and he and the administration are circulating it on the hill:

Graham’s proposal comes after weeks of discussion between the South Carolina senator and White House Chief of Staff Rahm Emanuel. In January, Emanuel and Graham began talks on a deal: Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, would be tried in a military tribunal, in exchange for Graham’s support for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.) According to an unnamed administration official cited by The Post, those discussions have broadened and Graham now hopes to reach a “grand bargain” that would resolve many outstanding questions concerning terrorist detention.

The White House opposes some of the ideas in Graham’s proposal, such as a separate national security court to try alleged terrorist detainees, according to The Post. But other provisions — including one that would create a standard process for dealing with habeas petitions, where alleged terrorists challenge their status as “unlawful enemy combatants” in U.S. courts — are likely to find support, The Post said.

It is all disquieting enough, but the last part signals a abject willingness by the Obama Administration to have Congress restrict habeas access to courts; I guess they are noticing that real courts keep thinking there is no justification for detention of the people they have salted away for years at Gitmo.

The second piece of news comes vis Mike Isikoff and the Declassified Blog:

The White House may yet be several weeks away from announcing whether it plans to overrule Attorney General Eric Holder and order that the 9/11 conspirators be tried before military commissions rather than in civilian courts. But it’s not hard to figure out which way the wind is blowing.

The Pentagon is set to announce that Secretary of Defense Bob Gates has appointed a new chief judicial officer for the Office of Military Commissions, according to three Defense Department sources familiar with the decision. The appointment, which could come as early as Wednesday, paves the way for the Pentagon to begin convening a series of high-profile terror trials before military commissions at the U.S. detention facility at Guantanamo Bay–the very same prison the president had once pledged to have shut down by the beginning of this year.

“All the indications we’ve been given are to get ready for a lot of activity in Guanantamo,” said a military prosecutor, who asked not to be identified talking about upcoming cases. “It’s full steam ahead.

The appointment of retired Admiral Bruce MacDonald, who formerly served as the chief Judge Advocate of the Navy, as the new “convening authority” for the Office of Military Commissions is among the most important moves in an apparent gearing up for the expected new wave of trials. As convening authority, MacDonald–who replaces Susan Crawford, a Bush political appointee who retired two months ago–will have the responsibility to “refer” charges against Guantanamo terror suspects to trials after receiving recommendations from military prosecutors.”

There is much more in Isikoff’s report, including that Omar Khadr is still first in the tribunal queue and that a more “refined” prosecution of al-Nashiri is being worked up. If you believe that the military commissions are fatally flawed and that terrorists should be tried in Article III courts like the the non-state actor criminals they are, there is not much good news here. The handwriting for a complete ObamaRhama cave to the neocon howlers is getting carved awfully deep in the granite wall. The one halfway encouraging thing is that early reports on MacDonald are that he is a reasonable and decent pick for the convening authority spot, but time will tell.

17 replies
  1. JTMinIA says:

    I love the apparent Catch-22 aspects to this. Having them in Gitmo makes it harder to try them in civilian court. Or, if you wish: if you’re going to try them in civilian court, you need to get them out of Gitmo. So what Graham wants in return for closing Gitmo is a promise they won’t be tried in civilian courts when, as explained above, one of the best reasons to close Gitmo is so you can have civilian trials.

    Between this and the squashing of any second looks at Bush-DOJ outrages like Siegelman, I am really starting to hate Emanuel with a passion.

    • bmaz says:

      It is rather disconcerting after what we went through as to politicization of the DOJ prosecutorial function under Bush.

  2. JTMinIA says:

    On second thought, with regard to Siegelman and such, Obama is Change.

    Bush prosecuted people who shouldn’t have been. Obama isn’t going after people that he should. It’s a total reversal. Woo-hoo.

    • bmaz says:

      That is a pretty hyped up article at HuffPo. I dunno. Personally I am going to require more than something out of Wayne Madsen to bite off on that one. Certainly all more than possible, but that article is a little weak.

      • cbl2 says:

        ke-rist! double face palm. had no idea it was Madsen, simply saw the link on FB

        skulks away mortified

  3. JohnLopresti says:

    One year from the date of Georgetown prof Katyal*s 2006 Scotus win in the Hamdan matter, seemingly restoring a modicum of respect for both habeas and US treaty obligations covering international human rights standards, Katyal appeared co-editorializing in NewYorkTimes with Admiralty JackG, espousing a new fangled court design in July 2007. I wonder how far Graham is willing to go in pursuit of hide protection for the designers of human rights abuse programs. Those two strong aspects of Hamdan–Geneva accords and habeas–appear bonded together in that opinion; it is worthwhile to read the text of Stevens* separate opinion beginning at 39/185. Cther parts of the website source of the above linked slip opinion also are useful there; they even have photos of folks on Scotus stairs. Much has been written since, however that site contains several hundred interesting links: for example, consider the following two link titles–**June 9, 2006: President Bush sides with Hamdan and now says Guantanamo detainees *ought to be tried in courts here in the United States*. (June 9, 2006, Press Conference between President Bush and Prime Minister Rasmussen of Denmark at Camp David)**; and **November 17th, 2005: Letter of Professor Jack Goldsmith, Harvard Law School, explaining why the Senate Should Not Restrict Habeas Rights of Detainees in the Graham Amendment.** I have yet to click thru those two. Graham appears to be fabricating other neocon attractant with a more modern tone.

  4. fatster says:

    They are not going to stop until they have this whole thing covered up. As my Southern grandmother used to say, “What a shame and a scandal!”

  5. BoxTurtle says:

    The supremes have basically said that ObamaLLP can set up a separate court system for terrorists (or anyone) as long as constitutionally required due process and rights are protected.

    I’m just not seeing a way to the Court of Guarenteed Conviction that will withstand a constitutional challenge.

    Boxturtle (GOOOO Browns!)

    • bmaz says:

      No. even the retooled commission plan set up early on by Obama leaves serious and crushing flaws; it will be totally crippled through multiple appeals; it is just a nightmare in the offing.

      • bobschacht says:

        Exactly. So why does ObamaRahma seem determined to take us into this nightmare? The only reason I can see is that it will kick the can down the road many years. But sooner or later, the Piper must be paid.

        Bob in AZ

  6. Jeff Kaye says:

    Well, someone needs to be a little suspicious of MacDonald, as he was special counsel to the Chief of Naval Operations from June 2002 through October 2004, a period of time of much abuse at the prison at the Navy base at Guantanamo. Also, it’s clear that the Navy SERE school was the center of pushing some of the worst torture (not officially, but people there).

    The CNO is the highest ranking officer in the Navy, and a member of the Joint Chiefs of Staff. This puts MacDonald close to the JCS during the time of the implementation of the SERE torture program.

    I’d like to know more what role, if any, MacDonald had in the vetting of the SERE techniques for Rumsfeld’s interrogation program. From an earlier article, that sets the scene (bold emphasis added):

    On October 25, 2002, General James T. Hill, Commander at SOUTHCOM, forwarded the request to get “tougher” and use the proposed SERE techniques to the Joint Chiefs of Staff. While he worried about the legality of some of the techniques, particularly death threats, he urged the Chiefs to consider that he wanted “to have as many options as possible at my disposal.”

    The Joint Chiefs hesitated. They asked for official comment from the different services. The Air Force reported back: “some of these techniques could be construed as ‘torture,’ as that crime is defined by 18 U.S.C. 2340.” The Navy responded more favorably, citing the need for better “counter-resistance techniques,” but asked for “more detailed interagency legal and policy review.” The Marine Corps balked. Some of the techniques (e.g., sensory deprivation, use of dogs, nudity, exposure to cold, 20 hour interrogations) “arguably violate federal law, and would expose our service members to possible prosecution.” The Army also cited “significant legal, policy and practical concerns,” noting the techniques probably violated Bush’s presidential order regarding “humane treatment” of detainees, and wanted more legal review.

    What came next was Gen. Myers, the Chief JCS, squashing the review led by Captain Jane Dalton, and the program went forward.

    That doesn’t mean I have anything hard against MacDonald (unless it’s even taking on the job, which legitimates these MCs), but I don’t think he should be given a free ride by the press, either, even if Col. Morris, an admirable man, has nice things to say.

    I have one nice thing to say: Admiral MacDonald went on the record as finding waterboarding illegal, inhumane, and in violation of Geneva (this in 2007 — see Leahy’s submission of a letter from MG John Fugh, RADM Don Guter, RADM John Hutson, and BG David Brahms, dated November 2, 2007, and passim on the site).

  7. JTMinIA says:

    OT: at least one amendment to the reconciliation bill is going to pass. Reforming reform will have to wait a while, therefore, since now it will have to go back to the house. (Does this mean Harry Reid will go ahead and have a vote on the public option, since it has to go back to the house anyway?…doubt it.)

  8. Leen says:

    If Mary shows up. The other day you said that Schumer had made the deal with Comey to keep the Plame investigation limited in scope. If you have the time could you tell me what you think Schumer was trying to keep locked up or who he was trying to protect. Why did he want the investigations scope “limited” If you have the time please leave your answer over at EW’ Chuck and Huck thread.

    Mary March 23rd, 2010 at 9:47 am

    “Keep in mind, too, for all the Fitzgerald love, that we almost got a really independent prosecutor who could have made big stinks with Congress, on Plame. Even Lieberman was wanting a kind of revival of independent counsel rules and alot of Republicans didn’t want – at that particular point in time – to look like they were approving the outing of a CIA agent. It’s Schumer who cut the deal with Comey to keep the investigation all very limited in scope and all inside DOJ.”

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