Did Obama flip-flop on military commissions?

posted at 10:16 am on May 15, 2009 by Ed Morrissey
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President Barack Obama will announce later today that he will use a revamped military-commission system to resolve the remaining cases of terrorist detainees at Guantanamo Bay.  This comes as no surprise, as the administration has used the Friday-night leak system to prepare the ground for what appears a Friday-afternoon announcement that will get buried in the news cycle.  But does this represent a reversal over what Candidate Barack Obama promised?  The White House says that Obama always envisioned using a commission system, and that Oceania has always never been at war with Eastasia:

The decision, to be announced Friday, could set off more criticism from civil libertarian and liberal groups that have increasingly complained that Mr. Obama has not made a sharper break from former President George W. Bush’s terrorism policies. During last year’s presidential campaign, Mr. Obama called the military commission system put in place by Mr. Bush “an enormous failure” and vowed to “reject the Military Commissions Act.”

But aides pointed out Thursday that he never rejected the possibility of using military commissions altogether if they could be made fairer, and they pointed to legislation he supported as a senator in 2006 intended to do just that. They noted that some defendants would continue to be tried in American civilian courts and said they were trying to create a “durable, multilayered option,” as one put it.

Obama did support an alternate proposal for military commissions in 2006 sponsored by John Warner, Lindsay Graham, and John McCain, but that was widely seen as a way to derail the Bush administration’s push for the tribunal system and not as full-throated support for military trials.  On the campaign trail, Obama sounded quite a different note.  After the current military tribunal system got a conviction in the Hamdan case, Obama called for cases to get moved to American courts (emphasis mine):

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. 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.

That statement fell into line with his allies on the Left, who had argued that Gitmo detainees should get prosecuted in the normal federal-court venue and not by the military at all.  They certainly understood Obama to mean the same thing through his frequent criticisms of the Military Commissions Act.  Some of them are expressing that disappointment in clear terms today, as Jake Tapper reports:

“Everyone knows the military commissions have been a dismal failure,” Gabor Rona, the international legal director of Human Rights First, tells the Los Angeles Times in what will no doubt be a harbinger of human rights groups reaction today. “The results of the cases will be suspect around the world. It is a tragic mistake to continue them.”

“It’s disappointing that Obama is seeking to revive rather than end this failed experiment,” ACLU attorney Jonathan Hafetz told the London Guardian. “There’s no detainee at Guantanamo who cannot be tried and shouldn’t be tried in the regular federal courts system.”

Human rights groups point out that in August 2008, then-Sen. Obama seemed to indicate he was leaning towards trying detainees in U.S. courts and through the court martial system.

Tapper insisted last night and this morning on his Twitter feed that this was not a reversal on Obama’s part, but it certainly looks like one to a broad spectrum of people.  Obama the candidate never offered a plan to make military commissions work better; he presented only criticism of that approach while leaving a distinct impression of favoring civil courts instead.  Jim Geraghty e-mailed this August 2007 statement that bolsters the argument:

I also will reject a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America’s courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

The UCMJ reference was to the idea that regular courts-martial could be used rather than the MCA.  However, that ran afoul of the same evidentiary problems associated with the civil court system — the exposure of classified intel, and so on.  The Washington Post article a week ago noted that the White House realized that “standard military settings”, ie courts-martial, would not work for that reason.

When Obama suspended the military commissions in January, the clear expectation was that they would not resume. The reboot of the commissions represents a flip-flop, as the leaks over the last two weeks made clear.  Recall these statements from inside the administration, as reported by the Washington Post and New York Times:

“It looks a lot more difficult now than it did on Jan. 20,” said one government official. …

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

Even the White House knows they’ve flip-flopped.  In this case, it’s a good idea, but it’s definitely a reversal, and one borne of inexperience and hubris.  Instead of raising expectations as he did by acting precipitately, Obama should have taken the time during the last two years to learn about the process and discover the difficulties before trying to implement the policy.  That would, however, involve admitting that Obama doesn’t know everything, which Obama appears to have difficulty acknowledging until circumstances force the issue.

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