The report in yesterday's New York Times that the Obama Administration is preparing to resurrect Military Commissions to try Guantanamo detainees probably sounds the death knell for the kind of justice meted out by Federal civilian courts in the U.S. for more than two centuries.
Instead, according to some of the nation's most respected legal authorities, we are about to slither into the quicksand of a regressive judicial "system" designed, not to dispense justice, but to get convictions.
The Administration's plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.
Since then, that objective has been immobilized by a perfect storm. The President's Task Force assigned to review each detainee's case found itself hog-tied by the Bush Administration's sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.
Then, a Federal judge ruled in the matter of the Uighers -" Muslims from China -" held at GITMO for years without charge or trial. These men had already been cleared for release -" but where were they to go? They couldn't be sent home to China, where they surely would face China's merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.
Amidst this genuine -" and exhausting -- effort, a Federal Judge took up the Uighurs' case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.
Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.
But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.
It didn't take much for our courageous lawmakers -" on both sides of the aisle -" to show how much they appreciated Obama's respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.
Trial. Oh yes, that was back in the days when civilian Federal trials for GITMO detainees were still on the table. Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.
The self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed (KSM), was to be the first to be tried and his trial would take place in Federal Court in New York City (home of dozens of other terrorist trials). Mayor Bloomberg of New York was enthusiastic about all the attention and tourist dollars this trial would bring to his city. And he said so. But then he went quiet. For days nothing was heard from him. And the next time he surfaced, he was embraced by the New York City Congressional delegation, and he and they had taken a 180-degree turn. Federal trials in New York: Bad Idea.
This despite the fact that dozens of accused terrorists -" including Zacarias Moussaoui, dubbed the "20th hijacker," have been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.
But Obama was not to be easily deterred. While Congress and the administration's critics were becoming increasing apoplectic about the prospect of meeting a terrorist in the men's room of the U.S. Courthouse in Manhattan, the Obama team readied itself for its first trial of a GITMO detainee to be held in the Continental U.S.
It was not KSM, however. It was a man who would perhaps provide a dress rehearsal for a KSM trial later. His name was Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of American Embassies in East Africa.
After 41/2 days of deliberation, the jury cleared Ghailani of
more than 280 counts, including the top charges of murder and murder conspiracy, and convicted him on one count: conspiracy.