Obama May Not Use Military Commissions After All?

May 18, 2009 | Last updated: July 31, 2020

That’s what Ken Roth, executive director of Human Rights Watch, and Gabor Rona, international legal director of Human Rights First, said in a conference call with reporters this afternoon, after meeting with the Department of Justice’s Special Interagency Task Force on Detainee Disposition.

“In order to save its ability to conduct military commissions, albeit with these new and supposedly improved procedures, it has to put the ball in motion now with proposed rule changes,” said Rona. “That does not to us mean that the continuation of military commission cases is inevitable. What was driving the timing of the president’s announcement last Friday was a timetable that was breathing down the government’s neck.”

If the government does decide to use the supposedly new-and-improved military commissions, however, that’s a real problem, Rona said, because the rules President Obama is proposing to change don’t really protect against the military commission’s abuses. The procedure is still not independent — it’s run completely by the military, with no independent check on executive power — and the so-called protections against coerced evidence only protect against evidence obtained by procedures that “shock the conscience”.  As we saw in those recently-released internal Justice Department memos, even waterboarding doesn’t necessarily shock the conscience of some Justice Department lawyers.

As for hearsay evidence, under the new rules, the government would bear the burden of proving it’s reliable. But by its very nature, the witness who made the statement isn’t available to be cross-examined. So while the government can say the hearsay statements were made voluntarily and not through torture or other coercion, the detainee and his lawyer can never really challenge that. So the new rules mean it’s reliable so long as the government says it is?

All of these questions remain unanswered, including whether the Obama administration is really going to use these courts and for whom. Some lawyers are saying this may have just been the administration’s way of floating a trial balloon to see how the idea of reviving the military commissions goes over with the public.

At least with human rights lawyers, it’s not going over very well.