Last year, I was telling everybody that Barack Hussein Obama was not going to be too different from Bush or McCain on foreign policy or on national security, but I was ridiculed for being naive and uninformed. Now, I feel like saying: “I told you so.”
Obama had railed against everything Bush on the campaign trail, especially the military tribunals and Guantanamo bay, calling it all:
“an enormous failure”
He has now decided to revive these same military tribunals for those same detainees at Guantanamo Bay. Well, what has changed since he was a candidate?
When Bush established the tribunals, Obama felt that they
“had failed to establish a legitimate legal framework and undermined swift and certain justice”
Now that Obama is running the show, these tribunals are now entirely legal:
“This is the best way to protect our country, while upholding our deeply held values.”
In 2008, the tribunals were against our values, but now they “uphold” them.
Obama’s claquers in the American media are now trying to justify this massive flip-flop. The WaPo claims:
The decision, which follows an intense internal debate, represents something of a reversal by the president…the administration appears to have bowed to fears articulated by the Pentagon” (emphasis added)
CNN seems to be ignoring the whole issue. Despite the glaring about-face, the NYT claims that the recent changes are “nuanced.” That Obama is merely “begun to scale back” from his earlier “bold declarations of new directions” . Obama is apparently “begun to come down on the side of taking fewer risks with security.” The same NYT had rejoiced when the Supreme Court had struck down Bush’s orignal military commission system, claiming:
“The Supreme Court on Thursday repudiated the Bush administration’s plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.”
Regardless of what Obama claims, the fact remains that the military tribunals are contrary to international law, and do not uphold cherished American values of freedom, equality and the rule of law.
These military tribunals are in direct contradiction to the Geneva Conventions, specifically the 3rd Convention, which apply to prisoners of war. For applicability, the convention states that it:
shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
(emphasis added)
Afghanistan and the US are both High Contracting Parties to this treaty. Most of the states involved in the war on terror are High Contracting Parties as well. Most detainees are captured in the context of an “armed conflict.” As such, on a very basic level, the Geneva Conventions apply to the war on terror, the Afghan war and Iraq War. Consequently, the US is required to abide by:
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Military tribunals cannot be considered a “regularly constituted court,” as they are, by definition, “not regularly constituted.”
Military tribunals don’t offer the defendants opportunities to examine the evidence against them or cross examine any witnesses. The prosecutors can claim pretty anything they like and then hide behind the excuse of “national security” to withhold information from the defendant. The detainees do have “legal counsel,” but it is appointed by a military judge whose main agenda will be to prove the military right. The judgment is passed without a jury. Hey, who knows whether the defendant was even guilty? How does any of this uphold our cherished values?
Understandably, military tribunals were constituted to protect national security data, to punish terrorists and to prevent any future attacks. The commissions can be justified solely on these bases. But they do not uphold our values and never can, regardless of what Obama claims.
