Criminal Justice

The Right to a Guilty Verdict

Obama's empty promise of due process for terrorism suspects


In a speech he gave a couple of months ago, President Obama said he was 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.

Last week 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 his May speech the president said these prisoners "cannot be prosecuted" because there is not enough admissible evidence against them yet cannot be released because they "pose a clear danger to the American people."

But 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 last week, "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.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  1. Honestly, there’s no reason for a trial if the results won’t matter. Save the taxpayers a little money and quit pretending you give a damn about due process.

    We may not like it, but it’s cheaper.

  2. Tomcat1066,

    Show trails are the strength of the state. I think denying the people their pound of media flesh has been a disaster.

    And besides, that many court room sketch artist jobs have to stimulate the economy somehow. The pastel pencil industry could see an unprecedented boom.

  3. “Obama’s Empty Promise Of…” could be a regular feature on Reason, along with “Another Isolated Incident.”

  4. Times like this I really miss joe.
    I’d really love to know the difference between a “kangaroo court” and one where no matter the verdict you’re staying locked up.

  5. Gosh! It’s almost as if the chaos and secrecy of covert warfare in foreign lands make it impossible to hold fair and accountable trials. To bad, we never took the time decades ago to establish an international legal standard to handle this situation.

    Oh, wait we did. The Geneva Convention back in the early 50’s did just that by placing strict obligations on combatants to fight under discipline and distinguish themselves from non-combatants. This created accountability even in the chaos of war. Those who did not fight under the rule of the convention could not be held accountable and in turn did deserve the legal protection provided by the convention.

    To bad it didn’t occur to us to apply this standard developed by the generation that had just fought WWII. Now we’ve reached the point where we’re contemplating show trials that will corrupt our entire legal system instead of cowboying-up and admitting that the conditions necessary to collect evidence for a civil criminal trial don’t exist in wars against those who fight in violation of the Geneva convention.

  6. LOL, they dont call him Obama bin Lyin’ for nothing now do they?


  7. To: 19%ers (White, rural, right-wing fringe idiots from “real” America)

    From: 58%ers (Smart, educated, urban and urbane REAL Americans who are effectively working to create a more civilized, European-style world.)

    Ha Ha Ha! You hear us? He He He Hee Hee Hooooo….

    We love it! We love that you guys have your underwear in a bunch, that you are brimming with anger, that you can barely see because of your apoplexy. We will enjoy it for the next eight years. Oh the world is changing, and it is sweet. Universal health care is on the way, and nothing you can do will stop it. You will spend the next 50 years trying to dismantle it to no avail, just like you’ve been trying to dismantle Social Security since the 1930s. The energy bill will change the planet and the US for the better, and there’s nothing you can do about it. You hear us? NOTHING!!!!

    HA HA HA HA HA!!!

    We love it that you love Sarah Palin. Please please please nominate her for President in 2012. Nothing will ensure another four years of progress than that. Oh sure, at some point, another Republican will get elected (2020?). No majority lasts forever (Mr. Rove). But that person will not be able to undo the progress that the Obama administration will have set in stone. Social Security and Civil Rights are now a fait accompli, and though idiots still try to attack them at the fringes, they aren’t going anywhere. The same will happen with all the Obama programs. Your greatest fears are being realized: a new world order is at hand!

    And by the way, your numbers will keep dwindling. You are 19% of the population right now, but demographics are not on your side. Soon, white people will be a minority. Our increasingly numerous Black and Hispanic brethren and our growing urban centers will ensure your voices will continue to be marginalized until some day in the not-so-distant future they will be extinguished, just as backward, reactionary, pseudo-christian redneck zealotry always is.

    Enjoy it while you can, suckers!!!! BWAAAAA-HAAAAAA-HAAAAAAA!

  8. That’s a lot of work for such a weak troll.

  9. Who is 19% of the population?

  10. I have to go look at Fark. Surely they are linking to a Reason article this morning.

  11. Reason gets no respect. The same diatribe was posted at

    before it was posted here. It wasn’t even written for us. And I thought we were special.

  12. SugarFree: I had wondered about the economic stimulation, but figured that so many would be classified as military trials that there’d be no sketch artists allowed, thereby rendering the economic benefit null and void.

    Plus, I’m just feeling like being an asshole today 😀

  13. Jesus, even Lonewacko trolls better than that. That’s such shitty trolling, I can only surmise that it’s mocking the concept of trolling. Meta-trolling, if you will.

  14. It’s an odd place to troll right-wingers, insofar as ensuring detainees get fair trials seems to be a position of overlap between libertarians and the idealistic leftists that elected Obama.

  15. At what point in time did Osama bin Laden or Khalid Sheik Mohammed become entitled to due process?

  16. At what point in time did Osama bin Laden or Khalid Sheik Mohammed become entitled to due process?

    The second that an American looks at them, or reads about them, or thinks about them, or the second they attempt to murder Americans, they deserve the protection of the Constitution, duh!

  17. Boy, those Gitmo guys must be real criminal masterminds. How can you pose a clear danger, yet leave no “admissible” evidence?

    Oh, yeah. Torture. Silly me; never mind.

  18. If Obama really cared about legal rights, he would have promised to try and repeal the Patriot Act. I don’t know if he has even ever acknowledged it exists.

  19. How can you pose a clear danger, yet leave no “admissible” evidence?

    Good point, I was told that if the evidence is inadmissible it is PROOF of innocence…. by OJ Simpson.

  20. How can you pose a clear danger, yet leave no “admissible” evidence?

    Simple – evidence obtained by means of torture is not admissible in court. But after you’ve been waterboarded for the 188th time and finally say “okay okay, I trained with al queda! Just stop drowning me!” you then pose a clear danger to the American people. You’re an “admitted terrorist” as they say.

    Please don’t tell me that Obama doesn’t torture. Of course he does.

  21. I meant to add, Obama is a total failure and I want my vote back. No, I wouldn’t have given it to McCain/Palin either. I want to be able to proudly say “I did not vote” in the last election.

  22. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

  23. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  24. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

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