Kinder, Gentler Military Tribunals? You Betcha. . . .

MAJOR UPDATE: THEY'RE BAAACK. . . .

Is President Obama planning to use highly criticized military courts to prosecute detainees at Guantanamo Bay? According to a New York Times article, he is.

Civil libertarians within Obama's liberal base passionately opposed the Bush administration's use of military tribunals to prosecute terrorism suspects. Also, the Supreme Court has ruled that Bush's commissions failed to offer sufficient procedural protections for defendants.

Obama campaigned against the use of military tribunals and boasted of his vote against the Military Commissions Act of 2006, which attempted to divest certain Guantanamo Bay detainees of habeas corpus rights. The Supreme Court overruled those portions of the legislation in 2008 and specifically held that the alternative process for determining whether the government had adequate grounds to detain suspects was constitutionally defective.

Kinder, Gentler Military Tribunals?
Perhaps the Obama administration believes that it can clean up the military courts. But if he ultimately decides to opt for military tribunals, this would probably reflect a bare desire to win difficult terrorism cases and to avoid political fallout from holding the trials in federal courts.

A lot of the evidence against the terrorism suspects includes hearsay and statements extracted through torture or other coercive techniques. Federal rules of evidence would not permit the use of such materials, which would make prosecution difficult [Translation: would require the government to prove its case "beyond a reasonable doubt"].

Furthermore, the prosecution of terrorism suspects in federal courts would generate another round of criticism from conservatives and moderates who oppose the idea. Although federal courts have prosecuted numerous terrorism suspects in the past (with high conviction rates), the issue remains a political lightning rod.

Obama's Biggest Contradictions Occur in His Anti-Terrorism Policies
In terms of disappointing his base, Obama's biggest contradictions have occurred in his anti-terrorism policies. Bush's practices in this area generated massive political heat from liberals both domestically and abroad. Obama's election victories (especially in the Democratic primaries) occurred in large part because the Left believed that he would dramatically alter the state of affairs in this area.

Although Obama has taken formal steps that retreat from Bush's policies, the substantive differences are too small to measure. During his first week in office, Obama issued executive orders that call for the closure of Guantanamo Bay within a year, the cessation of torture and the termination of CIA "black sites," or secret prison facilities where individuals face prolonged detention under poor conditions that likely involve torture.

But Obama has embraced many of the same positions that liberals and Obama himself criticized. 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.

If the New York Times article is accurate, then the use of military tribunals issue will join the list of policies that Obama has endorsed, despite the loud liberal criticism that Bush received when he did the same things. 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, liberals remain quite pleased with Obama's performance.

SEE RELATED COVERAGE:

They're Baaack. . . .

Glenn Greenwald has also covered many of these issues. He is one of the few progressives who has consistently adhered to progressive politics during the Obama-era.

Obama Administration Will Appeal Court Ruling Which Allows Habeas Petitions for Certain Captives in Afghanistan

The Obama administration has announced that it will appeal a recent Federal District Court decision, which held that three captives at Bagram Air Force Base in Afghanistan could challenge their status as "enemy combatants" in United States courts. The District Court held that the Supreme Court's ruling in Boumediene v. Bush, which allows Guantanamo Bay detainees to file habeas corpus petitions, also gives Bagram detainees access to United States courts. The Obama administration opposes the petitions and has announced that it will appeal the District Court's ruling.

Civil liberties advocates blasted the Bush administration for subjecting Guantanamo Bay captives to indefinite detention and for denying them access to federal courts. The outrage over Guantanamo Bay among President Obama's liberal base and among the populations of certain United States allies (particularly in Europe) probably explains why President Obama's first set of executive orders included a provision directing the closure of the controversial detention facility.

The Obama administration, however, has taken the position that Supreme Court's reasoning in Boumediene does not confer habeas rights to Bagram detainees. This is the same argument that the Bush administration made.

This logic, however, could support the capture and transfer of individuals to Bagram, where they could face prolonged and indefinite detention and denial of access to United States courts. Bagram could become the functional equivalent of Guantanamo Bay.

Even though Bagram differs from Guantanamo Bay because Afghanistan (unlike Cuba) is the site of a war, the particular detainees subject to the District Court's ruling were allegedly captured outside of Afghanistan and taken there for detention. Supreme Court precedent, however, has allowed the government to deny habeas rights to individuals detained in the "theater of war." The District Court, however, held that the government could not prevail under this exception because its own conduct and decisions placed the petitioners within the vicinity of a war.

The Constitutional Law Blog has more coverage of the legal issues.

Obama's "Interesting" Comments About Rendition

President Obama recently completed a 35-minute interview with the New York Times. During the interview, Obama addressed several domestic and foreign policy issues. A very wasteful moment occurred when the interviewer asked Obama if he was a "socialist"? When he said "no," the desperate interviewer asked: "Is there anything wrong with saying yes?"

Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.

Obama on Rendition
During Obama's interview with the New York Times, the following exchange concerning rendition occurred:

Q. Leon Panetta has said that we’re going to continue renditions, provided we’re not sending people to countries that torture. Why continue them at all?

A. Well, I think that you’re giving a slightly more definitive response than Director Panetta provided, but what I’ll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize – could be – because we haven’t made a determination yet, where let’s say we have a well-known Al Qaeda operative, that doesn’t surface very often, appears in a third country, with whom we don’t have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don’t torture, and that we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.

How all that sorts itself out is extremely complicated because it’s not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.

Analysis

I. Obama chided the interviewer for overstating Panetta's position.

Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.

II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.

A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.

III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."

This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.

Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.

Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.

Final Thoughts
The Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.

Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).

Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.