Lawyers and Rights Groups Outraged by Gitmo Decision

U.S.: Lawyers, Rights Groups Outraged by Gitmo Decision
By William Fisher

NEW YORK, May 17 (IPS) - Human rights advocates are furious at 
President Barack Obama’s decision to prosecute some Guantanamo 
detainees through the same military commissions he criticised during 
his campaign as a "flawed" system that "has failed to convict anyone 
of a terrorist act since the 9/11 attacks".

The White House said Friday that the commissions would be used to 
prosecute terrorism suspects who can’t be tried in the civilian 
criminal justice system, but added that detainees would have expanded 
legal rights to make the proceedings fairer.

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

Critics representing both the left and the right said Obama’s 
decision was an unnecessary compromise of U.S. values.

Bruce Fein, a prominent conservative who was a senior official in the 
Justice Department under President Ronald Reagan, told IPS, "The 
entire structure of military commissions is flawed. It combines 
judge, jury, and prosecutor in the same branch - the very definition 
of tyranny according to The Federalist Papers."

"Military commissions are used to whitewash torture and sister 
outrages against the Fifth Amendment and due process," he said.

Other constitutional scholars expressed similar views.

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 
characterised 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 organised under 
Article III of the United States Constitution or in a military court-
martial proceeding organised 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 offences. 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."

And Brian J. Foley, visiting associate professor at the Boston 
University School of Law, told IPS, "The system is fatally flawed 
because it was built to result in convictions - why else rig the 
rules to allow evidence that regular courts would reject as unreliable?"

He added, "The only people Obama is winning points with by this 
decision is the hard right wing - which is a waste of his time, 
because they will find reasons to hate him, anyway. He's thumbing his 
nose at his political base as well as at the world."

Human rights organisations 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 Guantanamo 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 minimising judicial 
scrutiny of the executive’s treatment of detainees."

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

Chip Pitts, president of the board of directors of the Bill of Rights 
Defence Committee, told IPS, "This a terrible day for the rule of 
law. I have to conclude that political considerations played a major 
role in this decision. Obama believes he must compromise in order to 
achieve his larger goals - health care, education and energy 
independence. But you don't compromise your basic principles."

The Centre for Constitutional Rights, which has mobilised dozens of 
pro-bono lawyers to defend Guantanamo detainees, said in a statement, 
"Today’s announcement is an alarming development for those who 
expected that the Obama administration would end Bush’s dangerous 
experiments with our legal system."

And Elisa Massimino, CEO of Human Rights First, argued that federal 
courts are capable of handling the cases and warned that "tinkering 
with the machinery of military commissions will not remove the taint 
of Guantanamo from future prosecutions."

But Obama’s decision was seen as a political win by some observers of 
Congress and by many conservative Republicans who have worried that 
Obama was seen as "too soft" on terrorism.

For example, David B. Rivkin Jr., a Washington lawyer who was an 
official in the Reagan administration, told The New York Times that 
the decision suggested the Obama administration "was coming to accept 
the Bush administration’s thesis that terror suspects should be 
viewed as warriors, not as criminals with all the rights accorded 
them in American courts."

In Congress, the Senate Republican leader, Mitch McConnell of 
Kentucky, an outspoken critic of Obama’s plan to close Guantánamo, 
called the decision to use the military commissions "an encouraging 
development".

Sen. Lindsey Graham, a conservative Republican from South Carolina 
and a member of the Armed Services Committee, called Obama's decision 
a step toward strengthening U.S. detention policies that have been 
derided worldwide. He said, "I applaud the president's actions today."

And Sen. Joe Lieberman, an Independent from Connecticut, also 
welcomed Obama's decision. He said, "The president has reinforced 
that we are at war, and that the laws of war should apply to these 
prisoners."

White House officials said the decision to proceed with military 
commissions came partly as a result of concerns that some detainees 
might not be successfully prosecuted in federal courts.

They said lawyers reviewing the cases worried that, among a host of 
issues, federal courts procedures might be too cumbersome to protect 
classified evidence that is likely to be central to many cases. They 
also said questions surrounding the brutal treatment of some 
detainees had become an obstacle.

The military commission system was set up after the military began 
sweeping detainees off the battlefields of Afghanistan in late 2001. 
It has been the subject of repeated legal challenges from human 
rights organisations because it denied defendants many of the rights 
they would be granted in a civilian courtroom.

When he was a U.S. senator, Obama voted against the Military 
Commissions Act of 2006, which established the current system.

In several landmark decisions, the U.S. Supreme Court has ruled that 
this system, first established by executive order by former President 
Bush, was unconstitutional.

(END/2009)

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