In his Harper's Magazine column in January of last year, Scott Horton raised the question, " Can the Military Commissions Be Salvaged?"
Horton, himself a Constitutional lawyer, went on to say, "Among those who are most engaged with them, there is a general consensus that the military commissions created by the Bush Administration were a huge embarrassment. The question is whether they can now be salvaged and turned into something respectable."
Why, he asks, "with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush Administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail""
In the legal mishmash that the Military Commissions became, it seemed painfully clear that the second-class justice designed to be meted out by the Detainee Treatment Act of 2006 wasn't going to fly. In fact, it was cut off at the knees by the Supreme Court in its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.
The 2006 law was followed by another in 2009, which was said to be more robust and more likely to provide fair trials and fair verdicts. This was in sharp contrast to the attitudes toward the 2006 law. But most legal experts agree that the changes President Obama spoke of as substantive were largely in the nature of tweaks and procedural changes -- except for the new provision that detainee statements obtained under duress would not be admissible in military courts.
Two of the Commissions'most outspoken critics on the issue were Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, and Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld said that the Commissions were "broken beyond repair," and "cannot be fixed, because their very creation -- and the only reason to prefer military commissions over federal criminal courts for the Guanta'namo detainees -- can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation."
Then, of course, Congress was not in any mood to accept the Obama view that Article III Courts would be the most appropriate venues in which to try terror defendants. This was, first, a question of executive branch power over the legislature. Second, it was just plain political cowardice. By Republicans. By Democrats. And by The President, who never put the full force of his office behind the Article III movement.
Hysterical congress people were obsessing in public about "running into" terror defendants on the sidewalks near the Federal Courthouse in downtown Manhattan, or sharing popcorn with them at the local movies. Having spooked themselves and their constituents, it didn't take much for these 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 (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.
Dozens of accused terrorists -- including Zacarias Moussaoui, dubbed the "20th hijacker," had been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.
Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.
New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict "a disgraceful miscarriage of justice."
Congress sided with King and the trial's many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.
Ergo, the Administration was left with only bad options, and not many of those.