Obama’s proposed revisions to the
military commissions pretty much exemplify his administration’s rather limited
conception of what “change” means for the foreign policy of the United
States.
Jeremy R.
Hammond -- World News Trust
May 22, 2009 -- President Barack Obama reiterated
in a speech Thursday
that he would continue with the Bush administration’s policy of trying prisoners
of the U.S. “war on terror” not in the Federal court system, but through military
commissions, which he described as “an appropriate venue for trying detainees
for violations of the laws of war.”
Obama criticized the Bush
administration’s use of the commissions, however, and announced that his
administration would make several changes. “We will no longer permit the use …
as evidence statements that have been obtained using cruel, inhuman, or
degrading interrogation methods”, he said.
“We will no longer place the burden to
prove that hearsay is unreliable on the opponent of the hearsay. And we will
give detainees greater latitude in selecting their own counsel, and more
protections if they refuse to testify.”
Obama’s plan is to use military
commissions to try detainees held at the military detention center at Guantanamo
Bay, Cuba, which he has ordered closed by the end of the
year.
The first problem with Obama’s
continuation of Bush’s policy, albeit a “kinder, gentler” version of it, to
borrow Glenn
Greenwald’s tongue-in-cheek description, is that “the overwhelming
bulk of the objections to what the Bush administration did was to the very idea
of military commission themselves”, as Greenwald observed last
week.
“The controversy … was grounded in the
argument that there was absolutely no reason other than to pervert justice and
enable easy and due-process-free convictions, to create a separate tribunal
rather than use our extant judicial processes.”
One thing Obama isn’t changing is the
fact that the detainees are considered “unlawful enemy combatants” under the
Military Commissions Act of 2006.
Under the Act, and “unlawful enemy
combatant” means anyone who has “engaged in hostilities” against the United States,
“including a person who is part of the Taliban, al Qaeda, or associated
forces.”
That pretty much includes anyone who has
exercised his right to take up arms against the foreign invading and occupying
U.S. forces in Afghanistan; a right protected under the U.N. Charter, which
recognizes “the inherent right of individual or collective self-defense” against
armed attack.
A “lawful enemy combatant,” by contrast,
is a member of a regular, uniformed army, under the military
commissions.
To understand the significance of this
distinction and its application under the military commissions, by this logic,
un-uniformed members of the state militias fighting the British Redcoats during
the American Revolutionary War must be considered to have been “unlawful enemy
combatants” -- a determination the officers of King George’s army would no doubt
have agreed with.
Furthermore, if we apply the standard, we
must reject the notion that the colonists had any kind of inherent right of
individual or collective self-defense against the British forces attempting to
enforce the King’s rule in the colonies.
If we are unwilling to accept such
conclusions, then the alternative must be that we reject the standard applied
under the military commissions.
One might object to this on the basis of
it drawing a comparison between American revolutionary militia men and members
of al Qaeda and the Taliban, but, all else aside, this objection ignores the
fact that under the military commissions, one is defined as a member of “al
Qaeda” or the “Taliban” simply by virtue of the fact that one has taken up arms
against U.S. forces in Afghanistan.
Moreover, individuals being held in
prisons such as the facilities at Bagram Air Force Base, Afghanistan, Abu
Ghraib, Iraq, or Guantanamo Bay, Cuba, are not necessarily even among those who
have exercised their right to take up arms against a foreign military
occupation.
One of the methods by which the United States
captured such individuals was by handing out thousands of dollars in cash
rewards to people who would turn in members of “al Qaeda” or the
“Taliban.”
One doesn’t have to be a genius to see
the flaw in this plan. Obviously, cash, particularly in the amount given by the
United States in as poor a country as Afghanistan, is a pretty tempting incentive to turn
over someone’s name to the United States as being among the “enemy,” whether they
actually are or not.
We don’t know which of the detainees were
actually participating in hostilities and which of those simply had the bad luck
of being in the wrong place in the wrong time and maybe being guilty of making
one of their neighbors angry enough to seek revenge by giving their names to the
United States.
Or they may not have been guilty of even
that, but rather just turned over by strangers who had no other reason for doing
so other than wanting to receive $5,000 in cold, hard
cash.
Under the military commissions, “hearsay
evidence” is explicitly admissible so long as the accused can’t demonstrate
“that the evidence is unreliable or lacking in probative
value.”
In other words, the burden of proof is on
the accused, rather than the accuser.
The Military Commissions Act of 2006
states explicitly that “A statement obtained by use of torture shall not be
admissible in a military commission.”
But the Bush administration got around
that clause simply by defining torture as not-torture. Torture was simply
redefined as some kind of legitimate “interrogation method,” albeit an
admittedly “harsh” one.
And evidence obtained from “harsh
interrogation methods” isn’t excluded under the military
commissions.
Under the military commissions, “Evidence
shall be admissible if the military judge determines that the evidence would
have probative value to a reasonable person.”
How “probative value” and “reasonable”
are defined is apparently left up to the military judge who makes the
determination of what evidence is admissible.
Also, statements of detainees “shall not
be excluded from trial by military commission on grounds of alleged coercion or
compulsory self-incrimination” so long as the “coercion” doesn’t amount to
“torture.”
But evidence obtained through “cruel,
inhuman, or degrading interrogation methods” is allowed, so long as “the
military judge of the military commission determines that there is sufficient
basis to find that the evidence is what it is claimed to
be.”
So if by such means a confession is
extracted out of a detainee, all that needs to happen for that coerced
confession to be admissible is for the judge to say there is a sufficient basis
that the confession is a true confession.
Now Obama has announced that hearsay will
no longer be admissible as evidence under the military
commissions.
But that’s unlikely to be of any great
comfort for anyone who has already lost years of his life wasting away in a U.S.
military prison facility based solely on just such
hearsay.
Other “evidence,” including confessions
coerced under what Obama euphemistically calls “cruel, inhuman, or degrading
interrogation methods,” which in some cases amounts to torture, are also to be
thrown out under Obama’s revised military commissions.
So Obama is lowering the bar a little
bit, saying that interrogation methods need not rise to the level of “torture”
to be excluded as evidence, only to the level of “cruel, inhuman, or degrading
interrogation methods.”
But the Obama administration may still
define such interrogation methods any way they see fit, just as the Bush
administration defined “torture” in a way that allowed detainees to be beaten,
threatened with harm or death, placed in painful stress positions, or given a
bit of the old “water torture.”
So another thing Obama isn’t changing
about the military commissions is the Executive’s claim to be able to interpret
or define the law.
In other words, Obama isn’t
changing Bush’s claim to authoritarian powers anathema to the U.S. Constitution
and the republican form of government it establishes, with three branches, each
serving as a check and balance against the others.
To sum up, Obama won’t change the fact
that under the military commissions, the United States has declared to the world that it
has the right to invade and occupy a foreign sovereign nation, that it rejects
the right of the native inhabitants of that nation to exercise “the inherent
right of individual or collective self-defense,” that it may deem any person of
that nation as an “unlawful enemy combatant” without any evidence whatsoever
that the individual was actually even engaged in hostilities, and that it may
imprison such individuals for an undetermined length of time without granting
them so much as the right to appeal their detention in the Federal court
system.
And Obama’s proposed revisions to the
military commissions pretty much exemplify his administration’s rather limited
conception of what “change” means for the foreign policy of the United
States.
Jeremy R. Hammond is the Editor of Foreign Policy Journal, an
online source for news, critical analysis, and opinion commentary on U.S.
foreign policy from outside the standard framework as defined by political
officials and the mainstream corporate media. His articles have also been
featured and cited in numerous other print and online publications. He has
appeared in interviews on the GCN radio network and on Press TV’s Middle East
Today program.
LINK: Foreign Policy Journal