Back to the Death Commission

by BINOY KAMPMARK

It seemed like a bright vision.  And that was primarily because it did not feature President George W. Bush.  But here, the Obama administration has undertaken what it said it would not do – run trials before military commissions it promised it would disband, against detainees whose legal status it promised to resolve, from a camp it promised it would close.  The military commissions were merely lying dormant, awaiting a signature to revitalise them.

The recipient of this newly aroused system will be Abd al-Rahim al-Nashiri, claimed by American authorities to be the leader of Al Qaeda in the Arabian Peninsula, and accused of the attack on the USS Cole in 2000.  Last Wednesday, the Pentagon filed capital charges against the Saudi national.

As Obama’s term continued, the sidestepping began over various electoral promises it staked its credentials upon.  Sidestepping then became full reversals.  In March 7 this year, the President signed an executive order which effectively gave the green light to resume military trials against the detainees in the Guantánamo prison facilities.  Continued detention of those in the facility would have to continue because they ‘in effect remain at war with the United States’.  What the order did was ‘establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases.’

The facilities on Guantánamo have become something of an American fetish, a self-supporting fantasy of deterrence against its enemies.  Patrick Robinson would claim in the Huffington Post (Feb 9, 2010) that the facility should be left open as it was ‘the most priceless source of intelligence gathered on a daily basis from incarcerated killers whose determination to continue the fight against the West breaks down under US interrogation.’  And how confident Robinson is of such techniques of interrogation, not to mention repudiating the presumption of innocence.

The New York Daily News crowed with approval at Obama’s Executive order – at least in part. Despite making an incomplete ‘U-turn’, the President had acknowledged that, despite not wearing uniforms, these ‘terrorists’ were ‘in every sense of the word, waging war against the United States.’  (That terrorists can themselves wage war is a questionable concept to begin with, but the subtleties of language have suffered a dramatic death since 2001.)  While the inmates should not be tortured, they should hardly ‘be read Miranda warnings.’  Nor could the editorial staff see a ‘meaningful substantive distinction between military tribunals and civilian trials’.

Over time, various barriers have frustrated the Obama administration’s aims towards those in detention.  For one thing, the fears that a security tag would be enormous dogged efforts to relocate detainees to the mainland.  Had, for instance, New York been the venue of Khalid Shaikh Mohammed’s civilian trial, the New York Police Department would have gotten the jitters.  ‘We will have to look at the entire city as a potential target’, claimed Police Commissioner Ray Kelly.

Some procedural tinkering with the tribunals has taken place. The Pentagon promises closed-circuit television access to journalists from Fort Meade, Maryland given a sense of ‘live justice’.  Coerced evidence will not be admitted.  None of this will make much of a difference to al-Nashiri.  The US record against him is a poor one – waterboarding, threatened drilling to the skull.  As Denny LeBoeuf, director of the ACLU Capital Punishment Project explains, military commissions possess ‘unfairly lax rules for allowing evidence, except when it comes to torture – the commissions may admit coerced testimony, while evidence of the torture that produced it can be censored’ (Press Release, ACLU, Sep 28).

Much of the case is also circumstantial or based on hearsay, which would make getting a conviction in a civilian court more problematic.  But there could be a rather perverse outcome here should al-Nashiri be convicted as a war criminal.  The events al-Nashiri is accused of engineering took place in 2000, before the declaration of the fatuous ‘global war on terror’.  As David Glazier of Loyola Law School has explained, to do so ‘could be construed as saying that a terrorist group can legally create a war.’  Now that would be exceptional.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

 

Like What You’ve Read? Support CounterPunch
September 03, 2015
Sal Rodriguez
How California Prison Hunger Strikes Sparked Solitary Confinement Reforms
Lawrence Ware
Leave Michael Vick Alone: the Racism and Misogyny of Football Fans
Dave Lindorff
Is Obama the Worst President Ever?
Vijay Prashad
The Return of Social Democracy?
Ellen Brown
Quantitative Easing for People: Jeremy Corbyn’s Radical Proposal
Paul Craig Roberts
The Rise of the Inhumanes: Barron, Bybee, Yoo and Bradford
Binoy Kampmark
Inside Emailgate: Hillary’s Latest Problem
Lynn Holland
For the Love of Water: El Salvador’s Mining Ban
Geoff Dutton
Time for Some Anger Management
Jack Rasmus
The New Colonialism: Greece and Ukraine
Norman Pollack
American Jews and the Iran Accord: The Politics of Fear
John Grant
Sorting Through the Bullshit in America
David Macaray
The Unbearable Lightness of Treaties
Chad Nelson
Lessig Uses a Scalpel Where a Machete is Needed
September 02, 2015
Paul Street
Strange Words From St. Bernard and the Sandernistas
Jose Martinez
Houston, We Have a Problem: False Equivalencies on Police Violence
Henry Giroux
Global Capitalism and the Culture of Mad Violence
Ajamu Baraka
Making Black Lives Matter in Riohacha, Colombia
William Edstrom
Wall Street and the Military are Draining Americans High and Dry
David Altheide
The Media Syndrome Between a Glock and a GoPro
Yves Engler
Canada vs. Africa
Ron Jacobs
The League of Empire
Andrew Smolski
Democracy and Privatization in Neoliberal Mexico
Stephen Lendman
Gaza: a Socioeconomic Dead Zone
Norman Pollack
Obama, Flim-Flam Artist: Alaska Offshore Drilling
Binoy Kampmark
Australian Border Force Gore
Ruth Fowler
Ask Not: Lost in the Crowd with Amanda Palmer
Kim Nicolini
Remembering Wes Craven’s The Hills Have Eyes
September 01, 2015
Mike Whitney
Return to Crisis: Things Keep Getting Worse
Michael Schwalbe
The Moral Hazards of Capitalism
Eric Mann
Inside the Civil Rights Movement: a Conversation With Julian Bond
Pam Martens
How Wall Street Parasites Have Devoured Their Hosts, Your Retirement Plan and the U.S. Economy
Jonathan Latham
Growing Doubt: a Scientist’s Experience of GMOs
Fran Shor
Occupy Wall Street and the Sanders Campaign: a Case of Historical Amnesia?
Joe Paff
The Big Trees: Cockburn, Marx and Shostakovich
Randy Blazak
University Administrators Allow Fraternities to Turn Colleges Into Rape Factories
Robert Hunziker
The IPCC Caught in a Pressure Cooker
George Wuerthner
Myths of the Anthropocene Boosters: Truthout’s Misguided Attack on Wilderness and National Park Ideals
Robert Koehler
Sending Your Children Off to Safe Spaces in College
Jesse Jackson
Season of the Insurgents: From Trump to Sanders
August 31, 2015
Michael Hudson
Whitewashing the IMF’s Destructive Role in Greece
Conn Hallinan
Europe’s New Barbarians
Lawrence Ware
George Bush (Still) Doesn’t Care About Black People
Joseph Natoli
Plutocracy, Gentrification and Racial Violence
Franklin Spinney
One Presidential Debate You Won’t Hear: Why It is Time to Adopt a Sensible Grand Strategy