ACLU CHALLENGES MILITARY COMMISSIONS

By William Fisher

Civil libertarians hit back hard today (Sunday) at reports indicating that the Obama Administration is about to cave to pressure from Congress and local groups in New York City and is not only considering transferring the cases of suspected terrorists to another federal court, but even moving them to the military commission system.

The American Civil Liberties Union (ACLU) purchased a full-page advertisement in today’s New York Times, urging the president to stick to the Justice Department’s original plan to try “high-value” terror suspects in the civilian criminal justice system.

The ACLU said military commissions are “a second class system of justice which should be shut down for good. The Constitution is not optional, and the rule of law must be restored.”

The ad features a picture of President Obama morphing into a picture of former President Bush.

The ad asks: “What will it be Mr. President? Change or more of the Same?

“Candidate Barack Obama vowed to change the Bush-Cheney policies and restore America’s values of justice and due process. Many of us are shocked and concerned that right now, President Obama is considering reversing his attorney general’s decision to try the 9/11 defendants in criminal court. Our criminal justice system has successfully handled over 300 terrorism cases compared to only 3 in the military commissions. Our criminal justice system will resolve these cases more quickly and more credibly than the military commissions.

The ad urges readers to “Tell President Obama not to back down on his commitment to our justice system, and to try the 9/11 defendants in criminal court. Remind the world that America stands for due process, justice, and the rule of law.”

Anthony D. Romero, the ACLU’s Executive Director, said the organization
placed the ad because “it’s critical that Americans know what is at stake here: nothing less than America’s commitment to the Constitution and the rule of law.”

Other legal authorities have been blunt in their criticism of the Obama Administration. Prof. David J. R. Frakt, Director of the Criminal Law Practice Center at Western State University College of Law, told IPS, “Many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”

Frakt, a Lt. Col. in the Air Force Reserve, was appointed to defend Guantanamo detainee Mohammed Jawad, an alleged combatant facing charges for events that took place when he was a minor. In 2008, he challenged the role of the legal advisor to the convening authority -- the number two in the Office of Military Commissions -- Brigadier General Thomas Hartmann, in choosing his client for trial. Frakt argued that Hartmann had "...exercised unlawful command influence." Hartmann was widely quoted as saying the Prosecution should choose to charge captives based on whether their trials would: "...capture the imagination of the American people.

Former Secretary of State Colin Powell joined dozens of retired military officers in encouraging the administration to use the civilian criminal justice system. In a television interview, he said, “I don't know where the [Republican] claim comes that we are less safe…In eight years the military commissions have put three people on trial. Two of them served relatively short sentences and are free. One guy is in jail.”

Meanwhile, he said, “The federal courts, our Article III, regular legal court system, has put dozens of terrorists in jail and they're fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn't…borne out by the history of the military commissions.”

As recently as two weeks ago, the Justice Department appeared to be steadfast in its commitment to civilian courts. “There is no precedent in the history of our Nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes," said the U.S. Department of Justice.

The administration appeared to be on board. The president has made his preference for civilian courts widely known. And John Brennan, Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism, said last week, “Cries to try terrorists only in military courts lack foundation. There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system—including high-profile terrorists such as (the shoe-bomber, Richard) Reid and 9/11 plotter Zacarious Moussaoui.”

But the political backlash was already growing. Most Congressional Republicans believe that military commissions are the correct vehicles for trying suspected terrorists. They also believe that those who cannot be tried in either civilian court or military commissions should be held indefinitely, without trial or charge. Some of these Congresspersons grudgingly acknowledge the Supreme Court’s ruling that all detainees must have the right to challenge their detention in U.S. courts – the habeas corpus right.

But others would deny this right, absent a Supreme Court ruling.

At the same time, some Democrats – looking toward the 2010 elections – are fearful that they will be called out as being “soft on terrorism” and are therefore either remaining silent or adopting the Republican line.

Congress threw an early monkey wrench into Administration plans to bring Guantanamo detainees to the U.S. for trials and to house those convicted in an Illinois prison the government was set to purchase. “Not in my backyard,” was the frightened cry that went up from Congress – which barred the President from moving any prisoner to the U.S. without their consent.

The wrath of right-wing politicians, activists and commentators reached a new level last week when Liz Cheney, daughter of former Vice President Dick Cheney, launched an attack on seven lawyers in the Justice Department. She tagged the lawyers as “Al Qaeda sympathizers” because the law firms they worked for before joining the government defended Guantanamo prisoners, often on a pro bono basis. Cheney called them “The Al-Qaeda Seven.”

“Keep America Safe,” the organization she heads along with William Kristol, a prominent conservative publisher, has launched an internet ad demanding that the identities of the seven lawyers be revealed.

Condemnation of the Cheney ad came from scores of lawyers, law professors, Ted Olsen, who served as George W. Bush’s solicitor general, and the American Bar Association.

Carolyn Lamm, president of the American Bar Association, called the Cheney ad “a divisive and diversionary tactic to impugn the character of lawyers who have sought to protect the fundamental rights of unpopular clients.” She said said that lawyers have an ethical obligation to "provide representation to people who otherwise would stand alone against the power and resources of the government--even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt."