Obama’s Dilemma: Maintain Illusion of Justice, Conduct Kangaroo Trials
Posted on July 2, 2009
By Kenneth J. Theisen
The Wall Street Journal (WSJ) recently reported that the Department of Justice’s Office of Legal Council (OLC) has determined that detainees taken in the U.S. war of terror may be entitled to some constitutional rights if they are tried by military commissions within the United States. (The contents of a leaked May 4th legal memorandum were shared with the WSJ.) In particular OLC told the Obama administration that the detainees may be able to successfully challenge the use of statements made as a result of coercive interrogations. In other words, statements that were the result of torture can not be used to obtain a conviction. This could throw a major monkey wrench into the Obama administration’s plans to possibly try some of the Guantanamo Bay prisoners in the U.S.
Military Commissions were created by the Bush regime to create a façade of justice when trying prisoners of the U.S. war of terror. The “rights” afforded to prisoners would have allowed the U.S. government to conduct kangaroo proceedings while the prisoners would be denied any real legal rights that would guarantee a fair trial. Congress went along with this farce by passing the Military Commissions Act to legalize this injustice.
The prison at Gitmo generated opposition to and revulsion at the U.S. policy of torture throughout the world and exposed the real “justice” – known to most human beings as “torture” rendered by U.S. imperialism. Obama, in one of his first actions as president, announced that he would close the hellhole there. (Of course it is still running and the abuse there continues, but Obama is quite good at making public relation’s gestures.) But the announcement of the eventual closing of the prison has caused problems for Obama and the U.S. ruling class. They can not decide how to deal with the prisoners held there.
Many of the prisoners have been determined to be innocent, but are still held. Others can not be tried, because to do so will reveal the horrendous nature of U.S. imperialist actions. They have been subjected to abuse that anyone (except for Dick Cheney and his criminal cohorts) would agree is torture. The Obama administration wants to go ahead with “trials” but it does not want to risk acquittals. Thus, Obama’s dillemma – how to conduct hearings that are “perceived” as fair by the world, but that eliminate the chance of freedom.
Military prosecutors have virtually admitted that most of the evidence against any prisoners who may be tried was obtained by coercion. If normal constitutional standards are applied in these cases, the statements will be excluded in any hearings. But the OLC normally determines constitutional interpretation for the executive branch of government and if the OLC interpretation in the leaked memo is applied, then the Obama administration’s attempt to cover up the true nature of U.S. imperialism’s continued actions in its war of terror is in trouble. Guantanamo still holds approximately 230 prisoners divided into three different groups. Four to five dozen may face “trial.” Another 50 or so have been cleared for release, but are still held as the U.S. government can not figure out where to send them.
The remaining hundred or more prisoners may be held indefinitely without ever being brought to trial. Obama has argued for indefinite detention of this last group because he knows the government can not get convictions in their cases due to lack of evidence, but he claims he fears future terrorist acts from them. (The Magna Carta 800 years ago established the right to be brought before a court, but I guess Obama does not mind going back 8 centuries or so when he applies “justice”. Earlier this year, Obama had the U.S. Solicitor General ask the Supreme Court to dismiss a so-called terrorist case so as not to risk the court determining that he could not hold prisoners indefinitely without trial. Obama, supposedly an expert in constitutional law, apparently uses his expertise to prevent people from using their constitutional rights.)
Over the last five years U.S. courts have ruled that various workings of the military commissions are unconstitutional. They have also ruled that the conditions under which the prisoners have been held are unconstitutional. Because of this, the Deptartment of Justice (DOJ), of which the OLC is a branch, created a task force to try to figure out how use military commissions in such a way that the U.S. government could obtain convictions that would not be ruled unconstitutional. The task force asked OLC for a legal interpretation as to which constitutional rights prisoners would be entitled if they were tried by military commissions on U.S. soil.
The memo written by OLC was in response to the task force request. According to the WSJ, “…David Barron, acting assistant attorney general, said the office believes there is a ‘serious risk’ that federal courts ‘would adopt a constitutional due process approach’ when evaluating military commission trials…Mr. Barron advised that courts were likely to view the use of coerced statements to convict and punish defendants as violating any definition of the Fifth Amendment’s Due Process Clause, which courts have cited in establishing a baseline of fundamental rights.”
My gosh! There is a “serious risk” the courts may apply the constitution. No wonder the administration is worried. Applying constitutional rights could jeopardize kangaroo trials. Oh my, how terrible!
The WSJ article quotes Navy Capt. John F. Murphy, the Obama administration’s chief military prosecutor, who stated in an interview, “We believe that military commissions, as distinct from other courts, are designed to not provide constitutional rights." Well that makes it pretty clear – they do not want the constitution to apply. Why not just take the prisoners out and lynch them instead of making any pretence that there will be any justice rendered in these cases?
Anthony D. Romero, Executive Director of the American Civil Liberties Union (ACLU) had this to say about the current controversy, ”The commissions system is inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. It is designed to ensure convictions, not achieve justice.”
"If the Obama administration truly intended to try the detainees in a system that provides fundamental rights and protections, it would do so within the tried-and-true federal court system where both national security evidence and fundamental rights can be protected. The only conceivable reason to design an alternative legal system would be to evade due process requirements. The proposed fixes to the Bush-era military commissions are thoroughly insufficient; there is no such thing as ‘due process light.’ If the Obama administration chooses to proceed with the commissions, it will find itself mired down in the same morass of legal challenges that the Bush administration did.”
Many people were convinced that when they voted for Barack Obama that he would institute real change from the fascist political trajectory begun by the Bush regime. But repeatedly Obama has continued this trajectory. The U.S. under Obama is now waging war in Iraq, Afghanistan, and Pakistan. Last week his administration said it will arm the Somali government in its civil war. In virtually every “national security case” that has come before the courts, Obama’s Justice Department has argued the Bush regime position to defend the national security state. DOJ recently went to court to defend the so-called Defense of Marriage Act to deny equal rights to the LBGT community. Torture continues in U.S. run prisons throughout the world. Thousands of prisoners are held in these hellholes while Obama’s minions go to court to argue against due process rights for those imprisoned there.
How long will we put up with smoke and mirrors and other illusions? How many will die and continue to suffer under the Obama administration? What will you do to bring about real change? Waiting for Obama is a dead end. Only you and millions like you acting in concerted action can bring about real change. What are you waiting for?