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OpEdNews Op Eds    H3'ed 4/5/11

Resurrecting Military Commissions, A Flawed Idea and Disregard for the Rule of Law

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To show how far we have traveled down the road in our disrespect for the rule of law, the Obama administration has reneged on trying Khalid Sheikh Mohammad, the alleged master-mind of 9/11 in civilian court and taken the politically expedient route of trying him before a military tribunal at Guantanamo.

To some Americans, possibly the majority, believe "So what! If Mohammad was behind this dastardly act, how or where he gets tried doesn't matter. He deserves to fry."

Well not so fast. But let's be clear about one important thing. If he or anyone else commits a crime (which the events of 9/11 are criminal) and they are tried in a legally authorized court by an impartial jury and subsequently found guilty of the charges against them they deserve all the punishment coming to them that's handed down by such a court.

Unfortunately that is not to be the case with Mohammad (and apparently four others also held at Guantanamo and suspected of being connected with 9/11).

To begin with, these military tribunals were conjured up and formed initially by the Bush administration as a means to try those "enemy combatants" (the loosely defined term the Bush gang used to justify their sweeping up anyone they suspected of terrorism in their self declared "war on terror"). Under Bush these "enemy combatants" were brought to Guantanamo and held indefinitely without formal charges, denied habeas corpus and as we subsequently learned were tortured during their confinement.

Such torture ("enhanced interrogation" as the Bush mob called it) pretty much precluded any chance of a fair trial as any evidence obtained under such illegal duress would be found impermissible and thrown out by any U.S. authorized civilian court.

So the plan was to avoid civilian courts and form military tribunals and avoid the distinct possibility of evidence being thrown out (gotten from "enhanced interrogation) as the rules of evidence are more relaxed in military proceedings as compared to the stricter rules in civilian courts.

Only a funny thing happened. Not one single suspect held at Guantanamo was ever tried by these military tribunals during Bush's term in office primarily because the Supreme Court found detainees held there DID in fact have habeas corpus rights, thus directing a serious blow to Bush's legal gyrations of setting up these legally suspect military tribunals to try these people.

Then of course the JAG Corps (the military lawyers assigned to prosecute and defend those held at Guantanamo) found the evidence against these men so tainted and gotten under conditions of duress (torture) that many recoiled from carrying out their assignments; some even resigning their commissions rather be a part of these trumped up proceedings.

So the whole concept of military tribunals became a non starter and with the coming of Obama was thought to be buried when he declared correctly early in his administration that those detainees at Guantanamo should be tried in civilian courts.

Meanwhile over the course of these past 27 months the Obama administration has since caved not only in its commitment to close Guantanamo but also trying detainees in civilian courts.

And so yesterday Attorney General Eric Holder announced Mohammad and four others would be tried by a military commission.

But what has changed? The military commissions are a flawed idea. What about evidence obtained by torturing a suspect? Will it now be permissible?

What seems completely lost is that 9/11 was a crime perpetrated and committed by individuals who were not of any military. Just because Bush assigned them a label as "enemy combatants" in his self declared "war on terror" doesn't make them "military" combatants subject to the universally accepted rules of engagement of war.

Even a president shouldn't be able to disregard the Constitution and the rights of the accused utilizing suspect legal justifications that even a right wing dominated Supreme Court finds un-Constitutional.

But then again, if you're a president who initiates a pre-emptive war in Iraq based on lies, no imminent threat and no alleged WMD and under the guise of some contrived notion of something called the "unitary executive" (not found anywhere in the Constitution) and you literally act to do anything knowing you wouldn't be held accountable, what's the small matter of your successor retaining your un-Constitutionally mandated executive authority and trying the admitted master mind of 9/11 in a legally suspect military tribunal?

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