Saturday, May 23, 2009

Obama's Opportunity

This piece was published on, and in the Orlando Sentinel.

Obama's Defining Moment: Detainee Policy Change

By John S. Wilson

Obama Detainee Policy -

Rachael Maddow did an excellent job of pointing out the glaring holes in Obama's "prolonged detention" proposal, which will ultimately replace Bush's enemy combatant policy.

Tuesday, May 19, 2009

Tortured Logic

This article appeared on

Tortured Logic: Guantanamo Detainees

By John S. Wilson

Tortured Logic Guantanamo Detainees -

The Obama administration has admitted that in the coming months it will unveil a modified military tribunal system to try Guantanamo detainees. Modifications include increased flexibility for suspects to hire counsel of their choosing, relaxing of hearsay rules to better protect them, and the banning of information that is obtained through torture (though many are still debating which interrogatory techniques are considered torture).

The fact that Obama is giving it the "old college try" when it comes to Bush-era war policy is somewhat commendable. It exemplifies his patience and even his thoughtfulness on policies he may not agree with. But that doesn't make it a smart idea. For one, he campaigned against the tribunals, and for good reason. On more than one occasion then Senator Obama claimed the tribunals do not make the US safer because they lack international respect and could by their very definition violate the Geneva Convention. And those assertions are not only credible but have yet to be debunked.

While there are some plausible reasons as to why federal courts are unable to prosecute these high level terrorism trials, the debate does not center around them. Frequently bandied about are statements such as: federal courts are not equipped to handle these kind of cases, and if suspects are not found guilty then that ensures they are allowed to stay and live in the US indefinitely. Neither is grounded in reality. One doesn't have to dig very far into history to see that high level terrorism suspects have been tried, convicted and sentenced in federal courts. Ramzi Yousef, planner of the 1993 World Trade Center bombing, was arrested in Pakistan and extradited to the US where he faced trial in federal court in New York. Ironically, former attorney general Michael Mukasey presided over the trial and Rudolph Guiliani prosecuted it. Yet neither one currently supports high level terrorism prosecutions in federal court presently. Jose Padilla, American citizen-turned-"illegal combatant" was convicted in a federal court in Florida for conspiring with terrorists to harm the US. One could also include Timoth Mcveigh, responsible for the Oklahoma bombing, in this group as well.

Obstacles to federal prosecution do exist however. Depending on the manner of investigation, which agency was in charge of it (i.e., CIA, FBI, or military itself) and the immediacy of the threat, evidence may be lacking. The burden of proof that a prosecutor must meet may not be met, reasonable doubt may ensue and a very dangerous suspect may go free.

But thankfully federal courts are not our only lawful option. Under Article 2 of the Uniform Code of Military Justice (UCMJ), Section 802 of Title 10 of the United States Code (U.S.C.), prisoners of war in custody of armed forces may stand trial. The benefit of using this system is multifold. It has a respected history, is known for being fair, is able to handle highly classified evidence without incident, and protects suspects' due process rights.

So why the tortured logic in the first place? I believe the Obama administration, in their rush to close Guantanomo, were not prepared to facilitate trials of the detainees. And when critics and voters alike began asking questions, the administration began grasping at straws. They got one, albeit recycled and with a Bush label on it, and it wasn't the one they hoping for.