Military Commissions and Terror Trial Policy

>> Thursday, May 14, 2009

Its official. The Obama detainee policy and legal anti-terror regime is a mess. Its a seemingly dirty mess that highlights the most disappointing area of the Obama presidency. This stuff isnt easy. Still, the Obama administration lacks a clear, cohesive, sound policy for dealing with detainees. The apparent center piece of the legal regime for dealing with accused terrorists is going to be the odious and much derided military commission system. The problems with the use of these commissions are well documented and include the ability to use hearsay as well as tortured information at trial. There is also a lingering question of whether or not, even with these advantages, the government can gain the convictions it seeks.

I believe that the Obama policy regarding these detainees at Gitmo is to get them in a trial and convicted. Clean out the legacy detainees from the Bush era using the military commissions. After this, Obama would seek to establish a new system to deal with future detainees. The Obama administration sees the commissions as the best shot at getting convictions and this is probably the case. However even in instances with great advantage the Government might not prevail. Take for example Ahmed v. Obama .

Applying a set of legal rules or theories that appear outwardly to give the government an easier time of proving that a Guantanamo Bay detainee must remain confined, a federal judge nevertheless has found that none of them can support continuing captivity for a Yemeni national in the face of serious weaknesses found in the government’s evidence, especially its reliance on information from four other detainees.

In one of the widest ranging rulings by any trial judge in the wake of the Supreme Court’s decision finding that Guantanamo detainees have a constitutional right to contest their captivity, U.S. District Judge Gladys Kessler has ordered the release of 25-year-old Alla Ali Bin Ali Ahmed of Yemen after nearly seven years of detention. The ruling, if followed by other District judges, has strong negative portents for government efforts to justify further detention in other cases.
Kessler allowed the government to proceed on what is called “the mosaic theory” rather than requiring it to prove directly that Ahmed has been a terrorist — a much harder task. The “mosaic theory,” often used by the intelligence community to build a case, provides that single pieces of evidence that may not be strong when looked at singly can be examined together to form a convincing pattern — here, a pattern of terrorist activity.
What is very likely the most significant parts of the ruling, with implications for other cases, is that Judge Kessler applied without qualification the legal standard of government authority to detain that the Obama Administration has laid out, allowed the government to try to prove its case on the lowest standard of proof, conceded that the government was entitled to a presumption that its evidence was authentic, and allowed the government to offer hearsay — what others said that Ahmed had said. Each of those legal principles is, as written, more favorable to the government than to detainees, but Kessler still rejected the cumulative effect as well as the individual strength of each piece of government evidence.

Now this was in federal court but it shows that even with things like hearsay evidence and every possible advantage the government can fail to make its case against people they assert are terrorists. If we make the basic assumption that the fix isnt in this presents a major problem with even the military commissions--losing.

As it happens the government has a fear of losing in court so great that they wont even risk some people in their special commissions created for the purpose. Even when they granted themselves the biggest home court advantage they could they dont have the confidence to take some of the detainees to trial. What this means is that it is more than possible that the Obama Administration is going to throw the legal principles of our country under a bus for nothing. i mean if they are going to end up going free why not stick to our principles? That at least might be a moral victory.

This fits into my larger overall point that President Obama needs to craft a forward looking system for dealing with terror suspects that holds true to our principles of law and equity. A proposal for system that purports to be such is available here. In short Obama needs to reform this area in the same way he is looking at health care, student loans etc. This is an institutional problem and it needs an institutional and systemic solution. As it currently stands the Obama administration seems to be heading backwards in terms of reform as it relies on the flawed philosophies and justification of the Bush years. Obama needs something new. Otherwise, we are stuck with a system little changed from Bush where the only difference is that instead of holding detainees indefinitely at Gitmo we hold them indefinitely in Fort Leavenworth or Pelican Bay.

The scary truth for the Obama administration is that some of these people simply cannot face any sort of trial where the outcome is unfixed do to royal screw ups with evidence and torture.

Vandeveld said in a phone interview that the "complete lack of organization" has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, "it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name."

Vandeveld was assigned to the military prosecutor's office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the "state of disarray" as he began to gather material for Jawad's case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or "simply piled on the tops of desks" of departed prosecutors.

"I further discovered that most physical evidence that had been collected had either disappeared" or had been stored in unknown locations, he said.

Obama cannot face the possibility of allowing people to go free. The administration views this outcome as being either too politically damaging or practically dangerous to allow. So we are left with a bunch of detainees in limbo and a search for some way to keep them in custody without trial.

My own view of how this shakes out is that the Obama admin does put all the legacy detainees tainted by torture and other such issues through a military commission show trial that is even more watered down than we currently see. After getting these convictions A new system comes into place that corrects the criticisms that are constantly leveled at the commissions. The left and civil libertarians view the entire episode as shameful and a low point on par with Korematsu. Obama blames Bush for the need to do this. As it is only the left that is really upset about this stuff Obama is not hurt politically by it and is reelected on the strength of his other domestic accomplishments. America tries to move on and pretend it didnt happen.


O-le,O-le, O-le, O-le! O-le, O-le!

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