The Washington Independent
The Washington Independent

Obama Criticizes Terror Trial, McCain Doesn’t

August 06, 2008 | Last updated: July 31, 2020

Sen. Barack Obama issued a statement responding to the Military Commission verdict for Salim Hamdan, who was just found guilty of material support for terrorism. This was the first trial since the Supreme Court rejected the Bush administration’s legal regime for terrorists — along with parts of the Military Commissions Act, or MCA — as unconstitutional. Obama voted against the MCA, while Sen. John McCain supported it. In today’s statement, after Obama commended U.S. soldiers for presiding over the trial and serving their country "with valor in the fight against terrorism," he stressed how the administration’s fatally flawed legal framework delayed attempts to bring "justice" to America’s enemies:

That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

By citing the Uniform Code of Military Justice (UCMJ), Obama is nodding toward proposals by many legal experts, and administration critics, to scrap the military tribunals and rely on the UCMJ to handle cases from Gitmo. For example, in congressional testimony responding to the first Hamdan decision, Yale Law Dean Harold Koh, who oversaw human rights at the State Dept. under President Bill Clinton, laid out the basics of a UCMJ approach:

Ideally, the [alternative to military tribunals] would resemble those applied in courts-martial conducted under the UCMJ, [and] strictly adhere to the fundamental requirements of international human rights law and the laws of war.

According to Koh, the fundamentals include a fair public hearing before an independent tribunal, a "presumption of innocence," right to trial without "undue delay," the right to "examine evidence and witnesses" and the right "not to be compelled to testify against himself or to confess guilt." These requirements would make trials more accurate, legitimate and consistent with American values, say proponents. Meanwhile, supporters of President George W. Bush’s system counter that raising the bar for evidence — or detainee rights — would help terrorists go free. McCain hit this theme in his response today:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Sen. Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

In fact, Obama has discussed using both civilian courts and a UCMJ court martial system to try terror suspects. And a second fact: Just about everyone supports using "U.S. civilian courts" for some terrorism trials — even Bush. Zacarias Moussaoui was convicted in a U.S. civilian court of far more serious charges than those facing many Gitmo detainees — including plotting 9/11. That’s one step in the fight against terrorists that Bush, Obama and McCain can all support — even if McCain won’t admit it anymore.

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