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Dressing Up the Military Commissions

I guess we should have seen it coming. First, Defense Secretary Robert Gates told the Senate on Thursday that the government might want to continue to detain indefinitely up to 100 of the 241 prisoners currently at Guantanamo Bay, so he needs $50 million to build a new prison for them here on U.S. soil.

Then, Obama administration officials leaked to The New York Times that they’re thinking of reviving the Bush-created military commissions, even though, having completed only two trials in eight years, they were almost universally deemed a disaster.

Last week I wrote that legal experts across the political spectrum increasingly agree that civilian federal courts are the best place to try terror suspects — despite the potential difficulties created by tortured evidence. If the evidence is reliable, it will stand up in court; if it’s not, then it won’t and it shouldn’t. The rules are there for a reason.

As Attorney General Eric Holder pointed out Friday, the recent guilty plea of Ali Saleh Kahlah Al-Marri, the last “enemy combatant” detained on U.S. soil, proves how effective the U.S. criminal justice system can be. Not only was the Justice Department able to get a man who was subjected to prolonged isolation, painful stress positions, exposure to extreme temperature, sleep deprivation, extreme sensory deprivation, and threats of violence and death to plead guilty to an offense that will land him up to 15 years in prison and a lifetime of supervised release; Al-Marri also swore in his plea agreement to valuable evidence that can now be used against others, including the notorious alleged 9/11 mastermind Khalid Sheikh Muhammed. That’s exactly how the criminal justice system is supposed to work.

It’s not surprising that some former members of the Bush administration, such as Homeland Security official Stewart Baker, quoted in The New York Times on Saturday, complain that Al-Marri and those of his ilk shouldn’t be in the criminal justice system at all but should be detained indefinitely for as long as the United States is fighting al-Qaeda — which may be for the rest of his life. Or that Andrew McCarthy, the former prosecutor quoted in that same story — and who the Times neglected to mention is also a senior fellow at the National Review Institute and rabid critic of just about all Obama national security policies — thinks that Al-Marri’s sentence isn’t long enough. McCarthy is the same person who last week said that serial waterboarding isn’t torture because “After the first or second time you get the point that there’s no death to be feared here.”

But I have to admit I wasn’t expecting President Obama, who as a candidate called the military commissions “an enormous failure” and quickly suspended them as president, to want to revive them now. Surely he knows that any new military commission will be challenged in court; actual trials and appeals would delay any resolutions of these cases for many years more.

But then, maybe that’s the point. Adopting military commissions may be the Obama administration’s way of achieving the indefinite detention that Gates was talking about when he asked Congress for that extra $50 million just-in-case. Only now, the administration can say these men are only being detained pending their military commission trials, and so can paint indefinite detention as “military justice.”

Talk about putting lipstick on a pig.

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