By Elliot D. Cohen
The Obama administration is now considering reinstating the Military Commissions Act after a four-month suspension, in contradiction to the president’s promise to end military tribunals for detainees and to close down Gitmo. While there is talk about reforming the act to restrict hearsay evidence and to permit defendants to challenge intelligence used against them, the disparity between the tribunals and due process for other criminals leaves intact the concept of “unlawful enemy combatant,” as contained in the act, and thus threatens further evisceration of the rule of law.
Running on the platform of a constitutional law professor who would restore the rule of law to the United States, the stench of hypocrisy pervades Barack Obama’s administration. This is not to challenge the need to make decisions based on available evidence and to fine-tune these decisions according to the facts—something that Obama has often held up as his modus operandi. The problem is that one of these facts to be taken into account is that evidence against at least some of these detainees was unlawfully obtained.
The fact that the evidence against certain detainees may have been tainted by virtue of having been attained through torture (let’s not mince words) is also a fact that cannot be buried under the rug in a fair trial process. Criminal defendants like O.J. Simpson walked when his “Dream Team” was able to successfully argue that the blood samples the prosecution relied on to convict Simpson of a double murder may have been tainted. Never mind that the most probable hypothesis was that Simpson committed the murders. Our justice system is based on procedural justice, which means that the process of conviction must be as just as the outcome; otherwise, we might as well resort to vigilante or shotgun justice every time we think someone has broken the law.
Rather than to admit that evidence attained through torture is tainted, in order to dispose of the cases in question, Obama is moving to retain the Military Commissions Act and its notoriously vague, legally flawed and chilling definition of “unlawful enemy combatant” as “an individual engaged in hostilities against the United States who is not a lawful enemy combatant.” This is not only a violation of the rule of law and of due process; it is also a concession to torture, which the president has repeatedly claimed to be off the table. To rely on evidence gained through torture is to dignify the use of torture, not to reject it. Thus, there are implications of sustaining the Military Commissions Act well beyond what meets the eye.
Not to mention that many detainees have been held without having been charged, in violation of their right of habeas corpus. This is an egregious affront to the United States Constitution, as recently confirmed by the Supreme Court. In retaining the system of military commissions that permitted such a flagrant miscarriage of due process, Obama dignifies the violation of the rule of law.
A coherent system of justice is not subject to fragmentation. When one part of the rule of law is breached, it can have profound impact on other parts of the system. Thus, retaining military commissions leads invariably to staying the course of operation of illegally run prisons like Guantanamo; allows for the use of illegally obtained evidence; sets a precedent for future trials in which such evidence can be used; and opens up the possibility that others in the future will be labeled as unlawful enemy combatants and treated in a similar way as the current prisoners are being treated.
For a defense secretary like Robert Gates, who was willing to cooperate in such abridgements of due process under the George W. Bush administration, this may seem like business as usual. But for someone like Obama, who has promised change, it reeks of duplicity and of the same old violations of the rule of law that we have seen time and again over the last eight years.
AP photo / Charles Dharapak
President Obama prepares to sign an executive order closing the prison at Guantanamo Bay on Jan. 22, 2009, in the Oval Office.