With David Kris Gone, Obama Rolls Out “New and Improved” Military Commissions

I think I’ll do a series of posts over the next few days all starting with the phrase, “with David Kris gone,” showing how Obama has finally gone off the deep end (the “Dark Side”) in his War on Terror and the Constitution.

This edition has to do with Obama’s announcement that he’s in the business of Military Commissions, new and expanded.

From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.

The new and improved Military Detention Regime has two parts.

First, the long-promised indefinite detention by fiat.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

One detail of it that sticks out is the standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Note, this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

The second part of the New and Improved Military Detention Regime is more and more military commissions.

The Secretary of Defense will issue an order rescinding his prior suspension on the swearing and referring of new charges in the military commissions. New charges in military commissions have been suspended since the President announced his review of detainee policy, shortly after taking office.

The Administration, working on a bipartisan basis with members of Congress, has successfully enacted key reforms, such as a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment, and a better system for handling classified information. With these and other reforms, military commissions, along with prosecutions of suspected terrorists in civilian courts, are an available and important tool in combating international terrorists that fall within their jurisdiction while upholding the rule of law.

Mind you, the “ban” on using tortured statements is no such thing, as it comes with a nice loophole.

But it all makes for a nice announcement for the shiny new military detention regime.

  1. earlofhuntingdon says:

    The “threat” to the “security” of the United States is also removed from any war, or the authorization for the president to engage in it. That undercuts the convenient excuse that detention of POWs can be for the duration of the applicable war, GWOT here, which is meant to be indefinite. The “threat” here isn’t business, it’s strictly personal to the detainee. It is also marvelous undefined, even by example. One politician’s threat is another’s freedom of speech.

    This is a blatant, sustained assault on constitutional protections and the rule of law generally. It seems long past time for Harvard to revoke Mr. Obama’s law degree. I’m sure Ms. Kagan’s successor will get right on it.

  2. earlofhuntingdon says:

    Detention in military prisons also seems divorced from whether a detainee was caught participating in battle against US forces in a war zone, which are normal predicates for detention by the military. This just assumes that “security threat” prisoners will automatically be detained by the military and dealt with wholly outside any system of justice. It’s a twist on the public’s idea that we are all Egyptians now.

  3. Jason Leopold says:

    Statement from Holder:

    It is important, however, that military commissions, as reformed by the Military Commissions Act in 2009 and other reforms, be allowed to resume. In November of that year, after consulting with the Secretary of Defense, I referred a number of cases for consideration for prosecution in military commissions. For the remaining cases the Guantanamo Review Task Force deemed suitable to pursue for prosecution, we will continue to work, along with the Department of Defense, to ensure that justice is done as swiftly as possible.

  4. lysias says:

    Since they claim the power to hold these people indefinitely without trial, why don’t they just do that, if for some reason they don’t want to give them a regular, civilian trial? What’s the need for these military commissions?

    (Granted, holding them like that would also be of doubtful validity. But at least it would presumably prevent the worst of punishments from being inflicted on them. And it would hold the promise of eventually releasing them, if and when the war in question finally ends, or a court holds that they have been held too long.)

  5. Knut says:

    First step to Gulag. A great public works programme. Why use all that heavy equipment, when you can put prisoners to work with picks and shovels?

  6. scribe says:

    BTW: by divorcing the indefinite detention from any connection to 9/11, it’s pretty clear they’re intending to take Assange captive and disappear him. It’s that fucking obvious. The same for Manning.

  7. earlofhuntingdon says:

    Mr. Swift would appreciate your wit, as would Dickens. Your suggestion that banksters be used as guinea pigs, to try out Mr. Obama’s new regime, seems to run afoul of the primary law in ObamaLand: banksters aren’t subject to any law, not even the lawlessness Mr. Obama and his esteemed Attorney General have just advocated.

  8. harpie says:

    Interesting juxtaposition:

    Inhumanity at Quantico; Scott Horton; Harpers; 3/7/11


    […] Department of Defense General Counsel Jeh Johnson, speaking to the New York City Bar Association last week, acknowledged the concerns raised about Manning’s detention and stated that he had personally traveled to Quantico to conduct an investigation. However, Johnson was remarkably unforthcoming about what he discovered and what conclusions he drew from his visit. Hopefully Johnson is giving careful thought to the gravity of the deviation from accepted U.S. practices that the Manning case presents. Under established rules of international humanitarian law, the detention practices that a state adopts for its own soldiers are acceptable standards for use by a foreign power detaining that state’s soldiers in wartime. So by creating a “special regime” for Bradley Manning, the Department of Defense is also authorizing all the bizarre practices to which he is being subject to be applied to American soldiers, sailors, and airmen taken prisoner in future conflicts.


    The brig commander at Quantico should consider carefully whether it is really wise to deal with a young whistleblower by using watered-down versions of the tools of tyrannical oppression with which regimes like Mubarak, Ben Ali, and Qaddafi are so closely associated. [emphasis added]

    From the Press Secretary [[email protected]]:

    […] Our adherence to these principles [Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions] is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.

  9. thatvisionthing says:

    I just started reading this, got this far:

    From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values.

    Have to spit! Spit spit spit plplplpllplplplpl !!!

  10. thatvisionthing says:

    a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment,

    I missed it, did Obama step in to protect Bradley Manning today? Or did he decide there’s no point in a trial, just endless detention is how he’s going to preserve, protect and defend the Constitution of the United States of America?

  11. Cynthia Kouril says:

    Soooo Marcy, I guess I can stop wracking my brain trying to figure out why Kris left?

    First Greg Craig loses the fight to close Gitmo, now Kris loses the fight to have civilian trials.

    And a few other battles, too?