Constitutional Law

Obama Suspends Military Tribunals

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President Obama has ordered the immediate suspension of the military tribunals at Guantanamo Bay while he decides how to handle the accused terrorists held there. Last week his nominee for attorney general, Eric Holder, said the tribunals did not provide adequate protections for defendants but was vague about whether the Obama administration would pursue trials in criminal court, standard military court, or some new amalgam. Obama, who has promised to close the prison at Guantanamo, also has to decide what to do with the prisoners he does not plan to try, many of whom are either innocent or accused of crimes less serious than those committed by detainees the Pentagon already has released.

In my column today, I note the Bush administration's poor track record in distinguishing "the worst of the worst" from the rest.

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  1. Excellent news!

    A little fine tuning: he didn’t order them suspended. He asked the judges hearing the cases for a 120 day recess. They could actually deny his motion!

  2. Yay! An auspicious start.

  3. he needs to order his military droids to stop prosicuting and move for dismissal.

    free the political prisoners!

  4. joe,

    I thought I heard that the recess had been granted.

  5. joe is right as usual. other than being so rightwing on this.

  6. Good beginning. I hope they are replaced with something approaching a fair process.

  7. NM,

    Really?

    Man, first the head of the Convening Authority says we tortured people, now this!

    Why do the military judges that George Bush hand-picked for these tribunals hate America?

  8. We’ll see what happens. Beats letting the screwed up process continue, anyway.

  9. pro libertate, screwings and beatings are the problem. the rightwingnoisemachine is drowning out the solution.

  10. pro libertate, screwings and beatings are the problem.

    Wow, you really ARE no fan of me, MNG, and Jennifer.

  11. This is good. Let’s hope what they come up with is actually better.

  12. joe why no outrage of the snubbing of clarke clifford in the new administration.

  13. Not a bad first day.

    By the way, any word on if Biden is going to live in the Cheney bunker they took off of Google maps? I always wanted a nuke-resistant bunker.

  14. So I ask again. Someone (sorry, can’t remember who) said that for Obama to close gitmo, his administration was going to have to go through a process to determine who was guilty, who was innocent, and who and what dangers would exist by releasing *some* prisoners. Isn’t this exactly what the Bush administration was doing?

    Yes, there was no indication that Bush didn’t want to close Gitmo, but it seems we’re just getting down to semantics, here.

    Prisoners in the WoT will continue to be ‘caught’. They must be put somewhere. A determination of guilt or innocence must be made.

    And frankly, I’m not sure that military tribunals were the problem. In fact, had these prisoners been getting military tribunals, that would have been great. The problem as I see is they weren’t getting any justice. They were just rotting in prison.

  15. sugar free, the rightwing stormtroopers are removing all of the imperial guards from there. the resort is firing a lot of people right now.

  16. A little fine tuning: he didn’t order them suspended. He asked the judges hearing the cases for a 120 day recess. They could actually deny his motion!

    That’s even better. He could have just said, “I’m President and I declare X.” Instead, he went about it in, what I assume, is the proper legal way.

    As I said, I am no Obama fan, but if he plans to implement his policy in a legal way (as oppossed to some former executives), at least we have a fair chance of defeating the measures.

    I sure HOPE this lasts…

  17. http://news.yahoo.com/s/ap/20090121/ap_on_re_la_am_ca/cb_guantanamo_sept11_trial

    GUANTANAMO BAY NAVAL BASE, Cuba – President Obama’s request to suspend all war crimes trials at Guantanamo was promptly accepted by military judges Wednesday in what may be the beginning of the end for the Bush administration’s system of trying alleged terrorists.

    The judges agreed to the 120-day halt the cases of five men charged in the Sept. 11 attacks and a Canadian accused of killing an American soldier in Afghanistan. Similar orders are expected in other pending cases before the Guantanamo military commission.

  18. paul, bush was only releasing the brain washed republodroids. he was not releasing the freedomfighters like obama will.

  19. neu mejican, that is excellent news. if we are really serious about this a 747 will land and fly the remaining illegally bound prisoners to sanfrancisco.

  20. Oh, this is wonderful news.

  21. Taktix,

    Legally, these “tribunals” are executive branch quasi-judicial institutions, not judicial branch courts.

    Your point still stands – it does reflect well on Obama that he doesn’t appear to consider the entire apparatus of government to be merely the agents of his will – but it would have been perfect legal for him to order the inferior officers under his commant to halt the proceedings.

  22. rose, yes it is. now where is the plain to sanfrancisco.

  23. joe, we finally have the right person incharge. now for the others.

  24. Paul,

    Bush was not ordering trials for the purpose of determining everyone’s guilt and closing Gitmo; rather, he was 1) holding a few trials for a few prisoners, without acknowledging any responsibility to clear up everyone’s case, and 2) doing so as part of the ongoing operations of the prison camp, not as an effort close it out.

  25. Hey, troll.

    Neener neener neener.

  26. can not reason do something about the trolls. joe good comment.

  27. I agree with Taktix.

  28. What exactly was the knock on the military tribunals, anyway, due-process-wise? Genuinely asking here, as I haven’t followed this in any detail.

    Any hints yet on what O and Holder plan to do to provide due process?

    Isn’t the problem with the prisoners who are still at Gitmo that nobody wants to allow them into their countries, and that’s why we are still holding “innocent” and lesser offenders there?

  29. bdb, are the beer hall meetings dropping off or something.

  30. Hey nobody,
    Why not cut through the fat and just call yourself “strawman”?

  31. r c dean, they are all innocent freedomfighters.

  32. highnumber veryfunny. show me a strawman in anything i commented.

  33. I’m curious. If they are not uniformed military of our enemy, Geneva Convention would not apply, right? And if they are plan clothes, they could be treated as spies since they are still agents of the enemy, right? So, if spies can be executed, do we hold trials for spies, is there anything in the Geneva Conventions that says a spy has a right to a defense? If so, can’t we just do that? If not, wouldn’t they just be executed, and then no “special” court would need to be established and set a precedent we could do without?

    I’m just asking my thoughts about this outloud and wonder of any obstacles. Nevermind that some of them may be innocent of everything, I’m really mostly just curious about the spy thing.

  34. Joe, I mistyped. I wrote: Yes, there was no indication that Bush didn’t want to close Gitmo, but it seems we’re just getting down to semantics, here.

    I meant to write: [T]here was no indication that Bush wanted to close Gitmo[…]

    So I agree with your general assessment. And I’m also happy about Obama wanting to do…something different. But other than changing the process of how guilt or innocence is determined, I’m not sure how this will all play out.

  35. If they are not uniformed military of our enemy, Geneva Convention would not apply, right?

    Actually, the Geneva Conventions would apply. The prisoners would be subject to the protections that apply to POWs, unless and until they are convicted of a crime (including fighting out of uniform et al) by a “regularly constituted tribunal” as laid out in the conventions.

    Upon that convinction, they lose their POW protections, but still retain the conventions’ protections for “persons.”

  36. Paul,

    You can drive a car to the store, or you can drive it around the block. Both will involve driving the car, but they take you to different places.

    You can set up a quasi-judicial system for determining the guilt of captives at a camp in order to sort out all of the cases and close it, or you can set up a quasi-judicial system for determining guilt as part of the operations of a prison camp you intend to keep open indefinitely. They both involve setting up a quasi-judicial system, but they take you to different places.

    Obama has ordered the Pentagon to do the former – figure out how to close the camp, and in the process, put together a tribunal system (or transfer to real courts, or whatever) that isn’t a joke and a stain on our honor.

  37. And if they are plan clothes, they could be treated as spies since they are still agents of the enemy, right? So, if spies can be executed, do we hold trials for spies, is there anything in the Geneva Conventions that says a spy has a right to a defense?

    You are aware that the US just can’t execute anyone it catches who it wants to call a “spy”, right?

    That espionage is a federal crime and that punishment for it requires conviction in a federal criminal court?

    If the Guantanamo detainees had in fact been “spies” they would have had a hell of a lot more protections than they actually had.

  38. What exactly was the knock on the military tribunals, anyway, due-process-wise? Genuinely asking here, as I haven’t followed this in any detail.

    The rules of evidence for the military tribunals allowed the use of coerced testimony and allowed the use of secret evidence the defense counsel was not allowed to see.

    Pretty much stuff that it was tough to do even before the Magna Carta.

    There was also a problem [IMO] with the use of military personnel to conduct the proceedings, because Guantanamo has seen repeated and large-scale resignations of prosecutors, judges, and defense counsel, who declared the proceedings absurd in a number of cases – but the military just kept plugging in new personnel until they found people willing to follow orders.

    There were also cases where presiding officers declared beforehand to defense counsel that the purpose of the tribunals was convictions and that acquittals would mean the tribunals weren’t being run properly.

  39. You can set up a quasi-judicial system for determining the guilt of captives at a camp in order to sort out all of the cases and close it, or you can set up a quasi-judicial system for determining guilt as part of the operations of a prison camp you intend to keep open indefinitely.

    Agreed completely. But what I’m puzzling is the bigger picture. Iraq is still occupied, Afghanistan is… ramping up, possibly. At some point we’re still going to be capturing “enemy combatants”. What is the long term plan?

  40. There is no long-term plan. They’re going to spend the next 120 days coming up with the long-term plan. That’s what it’s for.

    Stay tuned.

  41. joe, stop plaing around. the right shortterm plan is the right longterm plan. release the political prisoners. they are prisoners of concience jailed for their beliefs.

  42. Well, this is certainly a positive start. Obviously, these tribunals have been poorly run to say the least, but I don’t think that invalidates using military tribunals completely. Weren’t tribunals used during the frist Gulf war that processed and cleared people with relative efficiency?

    And as mentioned above, perhaps the thornier issue is what to do with the numerous prisoners that are released but unwanted pretty much everywhere.

  43. At some point we’re still going to be capturing “enemy combatants”. What is the long term plan?

    Take no prisoners,take no shit… Megadeth

  44. Actually, the Geneva Conventions would apply.

    Anyone got a link to a knowledgable discussion of this? I recall that the convention dealing with prisoners of war would not apply to an illegal combatant (someone who is fighting out of uniform, etc.) Is there another one, that the US has signed onto, that would apply?

  45. And as mentioned above, perhaps the thornier issue is what to do with the numerous prisoners that are released but unwanted pretty much everywhere.

    It would piss off the locals, but why not just take them back to the spot where they were detained and release them? With, say, a year’s average income for that country in their pocket, as a parting gift?

    If they are there illegally or wanted by the local authorities, let the local authorities deal with them as they see fit.

    Other than the obvious diplomatic uproar (and I think SecState Hillary is the ideal person to stiff-arm the locals on something like this), any drawbacks or objections?

  46. I recall that the convention dealing with prisoners of war would not apply to an illegal combatant (someone who is fighting out of uniform, etc.)

    You recall correctly. Once someone is deemed an illegal combatant, he loses the protections of POW status.

    However, the conventions lay out certain procedures and requirements for making that determination. You can’t just do so with the stroke of a pen, or the word of a soldier on the battlefield.

    There is a lot more to the Geneva Conventions than descriptions of POW protections.

  47. “””2) doing so as part of the ongoing operations of the prison camp, not as an effort close it out.”””

    I’ll go with this since there is a budget for future work at gitmo.

  48. Can’t we just let them all go? I was told once we elected Obama the world would love us. Surely no one wants to attack us anymore.

  49. This one may apply to many at gitmo.

    “””(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. “””

    All inhabitants of Afghanistan had the right to fight us if they did so respecting the laws and customs of war. The Bush admin was trying to pretend that shooting back was a war crime. So what the guy threw a grenade at us, it’s war.

  50. Supposedly at some Democrat caucus meeting today Carl Levin said that there are absolutely going to be investigations of US torture policy with an eye towards prosecutions as soon as the new Senate gets rolling.

    So that’s a plus.

  51. 61 muzzies released for gitmo returned to the battlefield to fight our soldiers.better to disregard ass hole judges and hang them all.

  52. cunnivore | January 20, 2009, 1:42pm | #

    OK, joe, your guy is on the clock. No more “he hasn’t taken the oath yet”, I expect some results pronto.

    So…howzat going?

  53. Oh, now the number’s 61. It keeps going up and down.

    Funny story: you know what is counted as “returning to the battlefield” now?

    Writing an editorial in a newspaper.

    Being interviewed for a documentary.

  54. CNN reports Obama just signed 3 exec orders:

    1. Guantanamo closed.

    2. Army Field Manual to once again be the interrogation standard for all US personnel.

    3. All US detention policies of the previous administration to be investigated.

    I thought this guy would chicken out, but I guess all that “We’re going to leave the past behind stuff” in the press may have just been Obama playing possum.

    RUN BUSHIES RUN! FLEE TO BOLIVIA!!!!

  55. Nice. Would it be too clich? to call this “change I can believe in”?

    now where is the plain to sanfrancisco

    Maybe my geography is off, but I thought the land in and around that city was more mountainous than flat.

  56. Having served in the Navy for 11 years, and being Honorable Discharged 3 out of 3 times, and it now being 10 years since I have separated I am NOT as jaded against the Navy as I used to be.
    With that Being Said, military tribunals, military courts, military justice, are all fantasies.
    RANK is all that matters in the Military
    Who has the rank has the “JUST-US”…
    I have seen court Martials and Capt.’s Masses, and they are completely unjust.
    The accused has NO CONSTITUTIONAL RIGHTS, because one gives them up when they join the military.
    And this is how we treat our-freaking-selves, just imagine how unjust those Military freaks will treat someone they MIGHT consider an enemy combatant.
    I am so glad I separated from THE NAV way back in 1999.
    The point is: Anyone who “THINKS” military courts are fair and “just” to ANYONE is a complete loony or liar! And should “do-a-Chenny” and go fuck themselves.

  57. It has been so long since I have posted on Hit&Run that I hope nobody thinks I am trolling…

    I just hate injustice, for anyone.

    I don’t hate Amerika. I just don’t play well with any bastards that don’t play well with others.

  58. 3. All US detention policies of the previous administration to be investigated.

    I thought this guy would chicken out, but I guess all that “We’re going to leave the past behind stuff” in the press may have just been Obama playing possum.

    We have top men working on the investigation.

    Top. Men.

  59. I don’t think a little bit of cutesy is going to get the egg off the faces of the “Meet the New Boss…” crowd, “Major.”

  60. Fluffy,

    If the measure of your time on earth is the good you do for your fellow man, than you should take comfort in the fact that I spontaneously began to sing the Battle Hymn of the Republic after reading your post.

    Mine eyes have seen the glory of the coming of the Lord
    He is trampling out the vintage where the grapes of wrath are stored
    He has loosed the fateful lightning of his terrible swift sword
    His truth is marching on!

    Glory glory hallelujah!
    Glory glory hallelujah!
    Glory glory hallelujah!
    His truth is marching on!

  61. I don’t think a little bit of cutesy is going to get the egg off the faces of the “Meet the New Boss…” crowd, “Major.”

    joe,
    I feel a bit of that sentiment, but I guess it is misguided when the old boss was W.

  62. All US detention policies of the previous administration to be investigated

    If war is hell, I’m not to blame.

    Everybody loves me baby, whatzzamatter with you?

  63. joe-

    If the three items Fluffy cites from CNN are true (at work, haven’t checked news), I gotta give this Ivy Leaguer some props. I’ll go even further: that is showing me some “change [I] can believe in.”

    But, to borrow from Samuel L Jackson’s 2000 NFL playoff promos, “[Obama] you have shown me something, but you are gonna have to show me a whole lot more to win Mr. [Libertymike’s] trophy.”

    Sam was referring to Quaddry Ismael and his Baltimore Ravens wild card victory over the Denver Broncos and the fact that they had to win three more games in order to hoist Vince’s cup. As you know, they did.

  64. I’m kind of against war, but if one must go to war, shouldn’t it be an all out effort to win? Isn’t it rather idiotic to have RULES of warfare?

    After all, war isn’t football. The object is to destroy the enemy and win. If I were the king, that’s how the war would be fought.

    There would be no worry about Gitmo because there would be no prisoners there or anywhere else. They’d all be dead.

  65. Libertymike,

    The only adjustment I would make to my first post is that as more details are emerging:

    1. Obama has written the executive orders but they have not been signed yet. They should be signed tomorrow.

    2. The order closing Guantanamo allows for a year to actually get it done, which is a disappointment.

    I would prefer a much tighter timeframe on #2, but I’ll trade that for some nice, big, fat, juicy investigations.

    Especially since I believe I also read that there is an executive order about to be signed dramatically limiting the ability of anyone other than the sitting President to invoke executive privilege, which to me smells like they’re setting things up so that former executive branch employees can’t resist fresh subpoenas on the basis of that privelege.

  66. FLuffy-

    Thank you for the update. I am working on something at work and I’ll have to listen to the radio on the way home.

    Obviously, I agree with your preference on a much tighter time frame on the Gitmo closing. I hope you are right on the dramatic limitation on the invocation of executive privilege. That too, would constitute “change that [I] can believe in.”

    In his way, TAO has actually spurred me to temper my absolutist anarchic expectations of Obama. BUT NEVER MY DEMANDS.

  67. If anyone is still checking this thread, there’s a report that the special prosecutor currently investigating the destruction of the CIA torture videotape is going to be empowered to investigate the underlying torture itself, as well as the chain of command that led to the underlying acts themselves.

    Seriously, Bushies, Bolivia is looking better and better.

  68. BTW, these swirling rumors about investigations and special prosecutors and such have me thinking of pulling down some cookbooks from the bookshelf.

    I really need to start planning meals around the best main ingredient known to man – sweet, sweet freeper tears.

    Please, freepers, try to sob directly into the catch buckets I will be laying out all over the internet. Thanks.

  69. Seriously, Bushies, Bolivia is looking better and better.

    Would the Bolivian government under Evo Morales give them asylum?

    Georgia might be a better choice.

  70. I understand that nobody wants to own an error.

    But as someone who was deeply suspicious of this brouhaha around Messiah Obama, give me full plate of crow, please. I cannot imagine a better way for him to start his job.

  71. I don’t think a little bit of cutesy is going to get the egg off the faces of the “Meet the New Boss…” crowd, “Major.”

    1. Guantanamo closed.

    Well, not yet. This is a statement of intent to close it once certain very difficult problems have been resolved. The resolution of those problems may be purely cosmetic (e.g., moving the prisoners into functionally identical detention elsewhere). Still, partial credit for a statement of intent.

    2. Army Field Manual to once again be the interrogation standard for all US personnel.

    Interesting, given his pre-inauguration waffle. Full credit.

    3. All US detention policies of the previous administration to be investigated.

    I’m not sure what it means to investigate a policy. Generally you review policies, and investigate practices. At this point, its too early to say whether this is a material change or purely cosmetic.

    So, I give partial credit on one of the three, with plenty of room to upgrade the other two depending on what actually, you know, happens. Since we’re all reality-based now, lets judge on results, shall we? And its still way too early for Obama to have achieved any actual results.

    And I’m still curious why he gets any credit at all for suspending the military tribunals of people who are being held without due process.

    Are the tribunals not providing due process? If not, why not? Am I misremembering that one of the earlier demands on Bush was that he do away with the “special” procedures for these people and just give ’em full UCMJ trials?

  72. Opps, miscounted.

    So, I give partial full credit on one of the three, with plenty of room to upgrade the other two depending on what actually, you know, happens.

  73. Are the tribunals not providing due process? If not, why not?

    Instead of asking this over and over, you could read the Boudemienne (sp?) decision.

    As I recall, you used to opine about it at length.

  74. Instead of asking this over and over, you could read the Boudemienne (sp?) decision.

    These are, obviously, the post-Boumediene tribunals, which I understand to be full UCMJ tribunals, rather than the sort of one-off military commissions thrown out in Boumediene. Boumediene specifically allowed approved standard-issue UCMJ military tribunals as adequate due process for the Gitmo detainees.

    Hasn’t Obama just put a stop to due process that was specifically allowed by the Supreme Court? Why? What standard over and above that applied by the Supreme Court is he using?

    I keep asking, joe, because I keep not getting any answer.

  75. This is another STUNT , brought to you by the up coming NWO; don’t be fooled. These detaines will be brought into the U.S this is a way to fool the population in to thinking that this Masonic figure head is what he claims to be, but when all he is , is a PUPPET for the NWO. He will fail and u will be dissapointed \; sorry this is the cold hard truth. Ron Paul was our only hope but the media played him off as a crazy Conspiracy theorist FOOL. Clut Gitmo is nt going to be closed fully according to the New York Times it will stay there IF needed, and if they REALLY were changing all this they would close it Tomorrow they have the ability GOOGLE, FIMA CONSENTRATION CAMPS and WAKE UP before its too late…..Sorry I only speak whats there.

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