Back to the Death Commission


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


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