Obama to Reinstate Military Commissions, Updated from Bush-era Process
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Pres. Barack Obama yesterday announced he would reinstate the military tribunals system implemented by the Bush administration to try suspects held at the Guantánamo Bay prison camp. The new round of tribunals would apply only to a handful of suspects and will require modifications to the process, as voted by Congress.
The president had rejected the military tribunals system, citing fundamental conflicts between the process and the Constitution’s requirements for fair trial. Many jurists and legal experts have noted certain convictions, if obtained by the tribunals process, could wind up being rejected by the Supreme Court for violating the Constitution’s provisions regarding due process.
To that end, the president proposes changing specific parts of the tribunals process: the changes would allow protections against self-incrimination, the freedom to choose civilian lawyers instead of US military lawyers, change the hearsay burden of proof to the accuser (hearsay must be demonstrated to be material and credible, instead of accused having to prove it untrue), and evidence obtained through torture would no longer be admissible.
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The changes are designed to make the prosecutions of those select individuals, under military tribunals, acceptable to the US judiciary, in keeping with the provisions of the US Constitution. Federal courts or the Supreme Court could void convictions obtained by circumventing Constitutional due process provisions or relying on what would be classified under American law as prosecutorial abuse.
Bush administration defenders have opposed any change of any kind to the tribunals process, arguing that non-citizens or accused “enemy combatants” should not enjoy Constitutional protections. The problem is the Constitution does not grant due process rights as privileges for certain accused individuals, but rather as constraints on the powers of the government. To erode those constraints threatens the integrity of the entire Constitutional system.
This decision by Obama is highly controversial and has spurred vehement criticism among his base of progressive supporters, who feel the slippery slope is already opened up by selecting out certain suspects for an alternate prosecution process. Republicans have been cheering Obama’s move, and wondering aloud if this will fragment his powerful base of “big tent” support.
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