They're Baaack. . . .

Recently, the New York Times reported that the Obama administration would likely bring back the controversial military commissions in order to prosecute terrorism suspects. During the Bush administration, the commissions generated a lot heat among civil libertarians in the United States and abroad.

As a Senator, Obama voted against the Military Commissions Act of 2006, and he successfully campaigned on the promise that he would would restore the image of the United States in the international community. Many liberals view the Bush administration's denial of basic civil rights as one of the greatest blemishes on the image of the United States.

During his campaign, President Obama criticized the use of military commissions, rather than federal courts, to prosecute terrorism suspects. When he first took office, President Obama issued a series of executive orders, including one that imposed a 120-day stay on all proceedings in military tribunals while a task force studied and developed alternatives to the existing process.

Today, additional news sources confirm that the Obama administration will "stay the course" and utilize military tribunals, rather than federal courts, to prosecute accused terrorists. According to the Washington Post the government will reform the rules of the military commissions in order to provide greater procedural rights to defendants:

The [new] rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys.

Nonetheless, until the government provides specific details, it is unclear whether these proposed changes will substantially alter the military commissions process as it existed in the Bush administration. Many critics argue that the government prefers military courts because the procedural rules strongly favor prosecutors. If this is true, then the Obama administration is likely using the controversial courts for the exact same reason as President Bush. The admission of hearsay evidence is extremely problematic because it allows the government to introduce damning statements into evidence, which the defendant cannot cross-exam (because the person who made the statement is not testifying). Accordingly, some civil liberties groups have vowed to sue.

Closing Statement
In a prior blog post on this subject, I summarized the policies that Obama has pursued, but which liberals passionately criticized during the Bush administration. I have reprinted that list below, with an obvious modification.

The Obama administration has embraced many of the same positions that liberals and Obama himself criticized during the Bush administration. For example:

* Obama and members of his administration have embraced the use of rendition. Many of Obama's most ardent defenders blasted progressives who criticized Obama on rendition as jumping the gun. Today, their arguments look even more problematic than in the past.

* Obama has invoked the maligned "state secrets" defense as a complete bar to lawsuits challenging potential human rights and constitutional law violations.

* Obama has argued that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus rights, even though many of the detainees at the facility were not captured in the war or in Afghanistan.

* Even though it no longer uses the phrase "enemy combatants," the Obama administration has taken the position that the government can indefinitely detain individuals, whether or not they engaged in torture and whether or not they fought the United States on the "battlefield." This logic combined with the denial of habeas to detainees in Afghanistan could make Bagram the functional equivalent of Guantanamo Bay.

* Now, it is clear that the Obama administration will use a "kinder, gentler" military commissions process to prosecute terrorism suspects -- despite liberal condemnation of the proceedings during the Bush administration and the curtailment of due process that this decision will naturally involve.

It remains unclear, however, whether these contradictions will erode any of Obama's political support. Despite his blatant departure from some of the most important progressive issues that defined his campaign, most liberals remain quite pleased with Obama's performance.

Other recent postings:

Hatchet Job: Jeffrey Rosen's Utterly Bankrupt Analysis of Judge Sonia Sotomayor

Rosen Defends His Misreading of a Judicial Footnote: Says Judge Winter's Writing "Not a Model of Clarity"

Scalia v. Sotomayor: The Use of Gender-Coded Language to Evaluate a Judge's "Temperament"

Earth to Orrin Hatch: Even Conservative Judges Make Policy!