Undernews is the online report of the Progressive Review, edited by Sam Smith, who has covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

May 18, 2009


William Fisher, Inter Press Service - Human rights advocates are furious at President Barack Obama’s decision to prosecute some Guantanamo detainees through the same military commissions he criticized during his campaign as a "flawed" system that "has failed to convict anyone of a terrorist act since the 9/11 attacks.". . .

The military commission system, rebuked several times by the Supreme Court as unconstitutional, was a centerpiece of the George W. Bush administration’s strategy for fighting "the global war on terror.". . .

Professor David Cole of Georgetown University law school told IPS, "You have to wonder why the Obama administration would want to saddle itself with a process that is deeply tainted by the way the Bush administration sought to use it. Surely it would be better in terms of the acceptability of the verdicts around the world, to make a clean break and use the regular courts or the military court-martial system."

Professor Francis A. Boyle of the University of Illinois law school characterized the military commissions as "kangaroo courts" that are too deeply flawed to be "fixed."

He told IPS, "The laws of war would permit [Guantanamo detainees] to be prosecuted in either a U.S. Federal District Court organized under Article III of the United States Constitution or in a military court-martial proceeding organized under the Uniform Code of Military Justice. To do otherwise would be a war crime."

"What is the Obama administration afraid of? An acquittal? There were acquittals at Nuremberg," he added.

Marjorie Cohn, president of the National Lawyers Guild, told IPS, "Military commissions deny the accused basic due process and are not necessary to try terrorism-related offenses. The U.S. civil and military courts, which provide due process protections that comply with the Constitution, can effectively protect classified information through the Classified Information Procedures Act.". . .

Human rights organizations were equally adamant in their condemnation of the Obama decision.

Jonathan Hafetz, an attorney with the American Civil Liberties Union, called the military commission system a "failed experiment that must be ended, not revived, if American justice and the rule of law is to be restored."

He told IPS, "There is no legitimate reason for continuing to circumvent the established method of trying terrorism suspects in our ordinary federal courts. No proposed improvements to the military commission system will cure their endemic flaws or their lack of legitimacy in the eyes of the world."

"After years of working with these bizarre commissions, it is clear to us that they simply do not work," said Zachary Katznelson, legal director of Reprieve, a British-based legal charity that represents a number of Guantánamo detainees.

He told IPS, "As a constitutional lawyer, Obama must know that he can put lipstick on this pig – but it will always be a pig."

Amnesty International USA researcher Rob Freer said the military commission system was "conceived and developed as part of an unlawful detention regime, to facilitate convictions while minimizing judicial scrutiny of the executive’s treatment of detainees."

"No amount of tinkering with their rules can fix this discredited system," he said.


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