Tuesday, May 19, 2009

continuing Bushism

The New York Times has an article today describing the Obama administration's "new" rules governing the military commissions which will try Guantanamo detainees. As the article makes clear, these New and Improved Military Commissions (TM) will be very much like the old Bush Military Commissions, but with a genuinely new marketing spin. You see, these rules governing military commissions are being promulgated by the Obama administration, rather than the Bush administration, so they are, therefore, much improved -- despite being virtually identical.

For example, Bush's rules mandated that detainees would be represented by counsel chosen from "military defense lawyers appointed by the Pentagon and assigned to a special office of military defense lawyers for Guantánamo." Under Obama's rules, however, detainees will be represented by "a lawyer 'of the accused’s own choosing'", so long as -- you guessed it -- "the requested lawyer [is] assigned to the Pentagon’s office of military defense lawyers for Guantánamo." See? Lots better. Of course, someone acquainted with the jurisprudential traditions of the United States might well ask: under what possible justification are these accused criminals not allowed to choose whatever lawyer they want?

But that's not all! Act now, and you can be convicted based on hearsay evidence which would not be admissible in any federal court: "Mr. Obama’s statement on Friday said that 'the use of hearsay will be limited.' But the filing showed that military prosecutors would continue to rely extensively on hearsay evidence that might be barred in federal court." And the admissibility of hearsay evidence "remains much broader than in domestic courts". Here, thankfully, we are treated to an actual justification for continuing this Bush-devised rule: "senior administration officials said that although federal courts bar many kinds of hearsay evidence, 'the hearsay rule is not one of those things that is rooted in American values.'" Notice that this is so completely, self-evidently wrong that these "senior administration officials" are unwilling to put their names to such a statement, but sheepishly insist on anonymity. The hearsay rule is centuries old, not some invention by "activist judges" during the Warren era. In fact, the U.S. Constitution guarantees the right of defendants to confront the witnesses against them. To say that this rule is not "rooted in American values" is a blatant lie. Something along the lines of Alberto "Judge" Gonzales opining that the Geneva Conventions are "quaint" or that the Constitution does not explicitly provide for the right of habeas corpus.

The article goes on to quote two military lawyers currently representing detainees (a Navy Commander and an Air Force Major). These folks, unlike the unnamed "senior administration officials", were actually willing to put their names to these statements. The Navy Commander said: "We’re going to end up with trials with evidence that is the product of coercion and secret hearings." The Air Force Major said the Obama administration’s alterations to the Bush administration’s system were “minor cosmetic changes.”

If we intend to railroad these people by doing away with the centuries-old protections we have traditionally afforded to accused criminals -- because we "know" they are guilty -- then just get on with it. Do it in secret, hang them from a tree, announce that they are dead, and get back to transferring tax dollars to the Ivy League banking cabal (or whatever else it is we are considering Important Issues these days). But stop insulting my intelligence with this disenguous happy-talk about how we are "grant[ing] detainees expanded legal rights" in order to "uphold[ ] our deeply held values". Horseshit.

6 comments:

Anonymous said...

preach on brother!
As a senior executive of a private company once told me, "See, it is all about spin. If you can spin it you can control it."

For real tho,
If we are gonna let Ira Sorkin represent Bernie Madoff then we should let the perpetrator of the lesser crime of petty terrorism (i.e. terrorism under $1billion) at least be able to pick whoever they want. And if no one wants to pay for their legal defense, then they can get a public defender from the military approved list.

Jessica Church said...

preach on brother! As a senior executive of a private company once told me, "See, it is all about spin. If you can spin it you can control it." For real tho, If we are gonna let Ira Sorkin represent Bernie Madoff then we should let the perpetrator of the lesser crime of petty terrorism (i.e. terrorism under $1billion) at least be able to pick whoever they want. And if no one wants to pay for their legal defense, then they can get a public defender from the military approved list.

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