The Right to a Guilty Verdict

Obama's empty promise of due process for terrorism suspects

President Barack Obama says he is determined to guarantee “meaningful due process rights” for terrorism suspects. But it turns out he is committed to due process only when it achieves the result he wants.

In July the Defense Department’s top lawyer declared that the president has the authority to detain people accused of belonging to or assisting terrorist groups even after they’re acquitted. The only point of prosecuting them, it seems, is to create an impression of due process while continuing Bush detention policies that Obama has repeatedly condemned.

We already knew that Obama plans to keep 90 or so of the 229 men who remain at the Guantanamo Bay prison, which he has promised to close by January, in “prolonged detention” without trial. In a May speech the president said these prisoners “cannot be prosecuted” because there is not enough admissible evidence against them but cannot be released because they “pose a clear danger to the American people.”

At the same time, Obama promised to minimize the number of detainees who fall into that category. “Whenever feasible,” he said, “we will try those who have violated American criminal laws in federal courts.” If that’s not possible, he said, suspected terrorists can be tried by military commissions, which “allow for the protection of sensitive sources and methods of intelligence gathering” and “for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.” 

Obama, who criticized the Bush administration for failing to give detainees due process, bragged about strengthening protections for the accused. Thanks to his reforms, he said, defendants tried by military commissions will have “greater latitude in selecting their own counsel” and “more protections if they refuse to testify”; introducing hearsay evidence will be harder, and statements elicited through “cruel, inhuman, or degrading interrogation methods” will be banned.

But how “meaningful” can such due process rights be when a conviction is the only outcome the government plans to respect? “If you have the authority under the laws of war to detain someone,” Pentagon General Counsel Jeh Johnson told the Senate Armed Services Committee in July, “it is true irrespective of what happens on the prosecution side.…If a review panel has determined this person is a security threat [and] if for some reason he is not convicted for a lengthy prison sentence…we would have the ability to detain him.”

It’s hard to imagine a situation in which the government thinks it has enough evidence to convict someone on terrorism charges but doesn’t think he poses “a security threat.” Since only guilty verdicts count, Obama might as well go directly to “prolonged detention” by presidential order, except that would reveal how little difference there is between him and his predecessor in this area.

Although Obama faults the Bush administration’s “ad hoc legal approach,” he too is leaving his options open. “We are indeed at war with Al Qaeda and its affiliates,” he says. The implication is that anyone accused of ties to Islamic terrorism—which could mean anything from undergoing training or planning an attack to donating money or building a website—can be treated as a prisoner of war, held without trial until the “cessation of hostilities” (in effect, forever). Alternatively, he can be tried by a military commission for violating the laws of war, or he can be tried in federal court on a charge such as providing material support for terrorism. 

“In our constitutional system,” Obama says, “prolonged detention should not be the decision of any one man.” Yet under the principles he and his underlings have laid out, the choice of how to treat a given terrorism suspect—whether apprehended here or abroad, on a battlefield or off, now or in the future—is entirely up to him.

In the end it may not matter much. When freedom is not a real possibility, due process is just for show.

Senior Editor Jacob Sullum (jsullum@reason.com) is a syndicated columnist. © Copyright 2009 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • John Tagliaferro||

    It's nice that he is at least tough on some tiny bit of national security. Now, if he could only get that implimentation piece working . . .

  • Warren||

    New At Reason:
    New site design, now with more FAIL

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    Meet the new boss ...

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    Pete Townshend is a racist for writing that song.

  • Ben Kenobi||

    Is it just me, or is there no more alt text on the pictures with the new site design?

  • Xeones||

    What about loyal commenters' right to a non-shitty comment interface?

  • ||

    I'm having serious trouble with the threaded comments. I'm not sure I can adjust. No offense to those involved in the redesign--it may be my primitive brain.

  • Xeones||

    It's not just you, dude. My highly advanced space-brain has quantum analyzed the threaded comments, and determined that they suck balls.

  • ||

    I wrote an anti-threaded comments song parody in another thread, but in deference to poor Mike, I won't link to it.

  • ||

    The policy as described strikes a reasonable balance between the rights of the accused and the security of the country.

    To allow captured terrorist suspects to have all the rights of criminal defendants in a civilian court would be the height of folly.

    I note that the majority of the detainees at Gitmo have already been released. Some can't be because no country will accept them, or because they would be subject to ill treatment if they were returned to their home countries.

    It should disturb Jacob Sullum that his position on this issue coincides with that of the radical left, who despise this country and wish it every harm.

  • Les||

    To allow captured terrorist suspects to have all the rights of criminal defendants in a civilian court would be the height of folly.

    It should disturb Bulbie that his position on this issue coincides with that of Che Guevara, Fidel Castro, and devoted Maoists, who despise this country and wish it every harm.

  • reply to this||

    it may be my primitive brain.

    My primitive brain can't even read the threads.

    The way they ape coherence visually doesn't match the way they would cohere if I could read the damn things. It's like looking at a prop newspaper with dummy text random "Shut the fuck up"s in it.

    Has anyone made any points today? I have no fucking idea.

    reply to this

  • Xeones||

    Has anyone made any points today? I have no fucking idea.

    A few, but they've mostly been along the lines of how shamefully the new comments suck.

  • ktc2||

    Well at least they get equal treatment with us here in the US. We have the same right to a guilty verdict, even if the DA and cops have to manufacture the evidence to get it.

  • Kroneborge||

    Also, WTF, can't remember poster name?

  • Mister DNA||

    I, for one, welcome the new ability to comment on the Daily Brickbats.

  • P Brooks||

    Has anyone made any points today?

    I'm on defense.

  • ||

    """because they would be subject to ill treatment if they were returned to their home countries."""

    It's wrong to hand them to a country that would harm them, and it's wrong to keep them in prison for such a reason. Maybe we should return them to their home countries without the fanfare, and without notifying the country. That way, their home country would have to find them first.The individuals have a sporting chance.

  • Michael Ejercito||

    That is a commonsense solution.

  • P Brooks||

    We've got them in "protective custody".

    It's an elegantly simple solution.

  • ||

    Yawn.

  • Michael Ejercito||

    Can not terrorists simply be killed upon capture?

  • JohnD||

    Can not terrorists simply be killed "before" capture?

    I fixed it for you.

  • Bruce||

    Somebody just needs to come out and unequivocally state that it is preferable to have 10,000 Americans die in a horrendous, painful, ghastly terrorist attack than for America to intentionally deny one person due process by keeping him locked up indefinitely without charges or a trial. Insofar as that's the false choice we've been given, there should be no doubt as to which side of that false dichotomy is the right one.

    Furthermore, Obama is still torturing people. When he says "there's not enough admissible evidence to prosecute" what he really means is the incriminatory evidence was obtained by means of torture. Why liberals are giving him credit for stopping the Bush/Cheney human rights violations is beyond comprehension. By continuing the Clinton and Bush era policy of rendition (a euphemism for "outsourced torture"), Obama has conceded he is not only continuing to torture people, but he's directly ordering it. How anyone can think America is not responsible for torture when it gives a detainee over to another country to do the torturing (and give America any information obtained as a result thereof) really demonstrates the inordinate lack of accountability and morality intrinsic to the American government.

    Now, it's easy to just say "if they're a terrorist kill them" but the point is that 99% of the time you don't know that they're a terrorist. Some Afghani sheep herder, in exchange for $500,000 and a few dozen sheep, tells a CIA operative that his neighbor Mohammad once talked to him about joining Al Queda. So the CIA goes and captures Mohammad, detains him as a suspected terrorist, pays off the informant with your tax dollars (and Mohammad's forfeited sheep), and most lazy, spiteful, fearful, uninformed Americans have no problem saying "just kill him!"

    If there is sufficient non-coerced, substantive admissible evidence that a suspect is guilty of terrorism (which is different than being a card-carrying member of a group that hates America), then the government should by all means charge them with a crime and there should be no problem securing a conviction from an American jury.

    The only thing that amazes me more than how disappointing a president Obama has turned out to be (a dark-skinned version of Bush with better speaking abilities and bigger ears) is how the far right sees Obama as an extreme left-wing socialist and the far left sees Obama as the hero who has saved America from Bush's horrible policies.

    Will the left start to support the Patriot Act now that Obama is saying it is great and wonderful and should be extended?

    Meanwhile, Obama could come out and try to ban abortion and the far right would suddenly become pro-choice, saying Obama is trying to use the federal government to control the bodies of our (white) women. That would be fun to watch play out, actually.

  • Michael Ejercito||

    How anyone can think America is not responsible for torture when it gives a detainee over to another country to do the torturing (and give America any information obtained as a result thereof) really demonstrates the inordinate lack of accountability and morality intrinsic to the American government.


    It would only be wrong if the detainee is somehow entitled to remain in American custody.

    If the detainee is an Afghan national, why not turn him over to his rulers?

  • ||

    Essentially, Obama maintains that terror suspects are guilty until proven guilty.

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