I came across two separate articles in the L.A. Times today, one an op-ed by David K. Shipler, and the other an editorial. Both discuss President Obama's national security policies, specifically regarding military commissions.
I am posting without much comment, since I've opined about this repeatedly.
The commissions lack the seasoned body of precedent that guides civilian courts, so their procedures will have to survive litigation by defense lawyers. But once the commissions gain stature and become the "new normal," every future administration will have a ready instrument to arrest, judge and sentence wholly within the executive branch, evading the separation of powers carefully calibrated in the Constitution. The judicial branch has no role except on appeal, where only the federal court for the D.C. circuit may review a verdict and sentence after the trial. [...]
Restraint usually dies during spasms of fear over national security. [...]
Provided the offense is committed in the context of "hostilities," defined as "any conflict subject to the laws of war," commissions may try a noncitizen on charges that include spying, seizing property for private use, taking hostages, rape, sexual assault, hijacking, mistreating a dead body or improperly using a truce flag or distinctive emblem, as well as murder, torture or material support for terrorism. [...]
[T]hey still allow certain hearsay and statements coerced during combat or capture. So the military commissions' findings may be less reliable.
So Obama eventually backed down. Why? Partly because public and congressional opinion had quickly moved from hostility to a trial in New York to hostility to a trial anywhere in the United States. But Obama cooperated in dooming civilian trials. First, he provided cover to his critics by retaining the option of military commissions for some detainees, an inconsistent policy that encouraged critics to urge a military trial for Mohammed and the other Sept. 11 conspirators. Second and more important, Obama was maneuvered into signing a defense authorization bill that barred funding for transferring any Guantanamo inmate to the United States.... [B]y signing the legislation, Obama guaranteed two outcomes: The detainees wouldn't be tried in a civilian court, and Guantanamo wouldn't be closed. [...]
[C]ongressional resistance plays a role. [...] With Guantanamo, Obama is unwillingly perpetuating a state of affairs from the Bush administration. But he has voluntarily continued another Bush policy that he had criticized on the campaign trail. This involves the "state secrets" doctrine, which allows the government to shut down a trial on the grounds that it would betray sensitive information. [...]
A final example of Obama adopting a Bush national security policy is the president's signing of an extension of three sections of the Patriot Act. [...] Obama could have held out for... amendments.
Both articles should be read in full. I whittled them way down to give you only the gist of the main points they make. Please follow the links to each to see the fuller picture.
I do understand the Congressional resistance, but between the two pieces, a few arguments were clarified that were a little fuzzy until now.
One point I do want to make. While I am critical of President Obama, I also make a habit of expressing my appreciation of him whenever I feel he deserves it. I will be voting for him in 2012, because the thought of any potential Supreme Court nominee hand picked by a Republican in the White House is beyond disturbing and is not an option.