President Obama Announces Tribunal Changes That Bring Them In Line With The Rule Of Law

[ClarkUSA]

President Obama today announced changes to the military commissions set up to try Guantanamo Bay detainees, saying he would bring them in line with the rule of law and make them a "legitimate forum for prosecution."

The administration also has requested additional continuances in nine pending military commission proceedings while it makes changes to the process... In a statement, Obama said military commissions had a long tradition in the United States and -- if properly structured and administered -- they were appropriate for trying enemies who violate the laws of war, in addition to trials in so-called Article III courts, which are civilian federal courts.... The president's statement included a justification for the use of a revamped military commissions system. "In 2006, I voted in favor of the use of military commissions," it read. "But I objected strongly to the Military Commissions Act that was drafted by the Bush administration and passed by Congress, because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time."... The changes announced today include a ban on using statements obtained from detainees through "cruel, inhuman and degrading interrogation methods"; limitations on the use of hearsay; greater latitude for the accused in choosing their lawyer; and basic protections for people who refuse to testify. Under the new rules, military commission judges would be able to establish the jurisdiction of their own courts.

The statement went on to say the Obama administration would work with Congress on "additional reforms" that will allow for effective prosecution of terrorists.

When pressed by reporters seeking to equate the Bush-era military tribunals with the new system Obama is seeking to establish, Gibbs argued there was little comparison. "This notion that somehow the law is the same under the protections that the president has entered into, I would simply point you to the opinion Justice Kennedy wrote in the Supreme Court case in 2007, denoting that that without the protections the president is enumerating to the court today those trials can't go forward," he said. "The notion that this is the same vehicle is simply not true."

Heads-up to those who are interested: President Obama will give a speech addressing issues associated with Guantanamo Bay and anti-terror tactics on Thursday.

As a candidate, President 'Obama explained one of the tenets of his worldview when it came to civil liberties and counterterrorism, saying "we can abide by due process and abide by basic concepts of rule of law and still crack down on terrorists."' Naysayers may want to note that all these changes and future proposed changes to be worked out with Congress are proof that his worldview has not changed.

To those who support the tribunal changes that President Obama has made and will make, please help keep this thread kicked so folks can read the facts. Thanks!

[Buzz Clik]

1. How about that. This will be disappointing to DU's Obama=Bush crowd.

:cry:

[vaberella]

2. They won't care, they'll just spin some more. n/t

[ClarkUSA]

61. Yup. But it doesn't matter 'cause no one is listening to them in the reality-based world.

[redqueen]

68. One of the most popular stories on CBS

"Critics Call Obama's Tribunals "Bush Lite""

I hope you're right... but if so, it ain't for the M$M's lack of trying.

[ClarkUSA]

83. You're right: the MSM loves to play up any anti-Obama controversy.

It's interesting to observe how Pres. Obama's approval numbers never seem to take a hit, eh?

[Bjorn Against]

12. I never claimed that Obama=Bush, but it does disappoint me greatly that he would claim this is legal

The sixth amendment to the Bill of Rights clearly states...

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Military commissions are not public trials, and therefore no matter what spin the Administration tries to put on them they are clearly unconstitutional.

[ClarkUSA]

23. Military tribunals were first used by General George Washington during the American Revolution.

Military tribunals are designed to try members of enemy forces during wartime. The United States has made use of military tribunals or commissions, rather than rely on a court-martial, within the military justice system, during times of declared war or rebellion.

As I have said, General George Washington used military tribunals during the American Revolution. Commissions were also used by General (and later President) Andrew Jackson during the War of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in the Mexican-American War. The Union used military tribunals during and in the immediate aftermath of the Civil War. Military tribunals were used to try Native Americans who fought the United States during the Indian Wars which occurred during the Civil War. The so-called Lincoln conspirators were also tried by military commission in the spring and summer of 1865. Military commissions were also used in the Philippines in the aftermath of the Spanish-American War and so on and so forth.

[Bjorn Against]

24. Yes, I realize the Constitution has been violated many times before.

The fact that it has been violated before does not justify violating it again however.

[ClarkUSA]

25. I disagree with your interpretation of the Sixth Amendment.

The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians.

The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." But it was long ago settled that the Sixth Amendment right to a trial by a petit jury is limited to the same group of people entitled to the benefit of grand jury indictment specified in the Fifth Amendment.

Moreover, in Article 106 of the Uniform Code of Military Justice, Congress has itself authorized the President to try anyone acting as a spy by a general court-martial or by a military commission, and in Article 104 has authorized trial by court-martial or military commission of "Any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly." Similar provisions were relied upon by the Supreme Court in the 1942 case of Ex Parte Quirin, when it upheld FDR’s decision to try by military tribunal rather than civilian court German saboteurs who had come ashore from a German submarine concealed in the waters off the U.S. coast.

In short, the Constitution’s text as well as historical precedent provide ample support for Presidents' decision to utilize military tribunals.

[Bjorn Against]

28. I read the words of the Constitution not the words of the people in power who try to undermine it

By my interpretation when the Constitution says "all criminal prosecutions" it means all criminal prosecutions, and neither the courts nor Congress can convince me that the word "all" only means "some".

[ClarkUSA]

31. Then you're deliberately ignoring the entire body of constitutional text and historical precedence.

You are entitled to your opinion but it doesn't change the facts as I've tried to explain them to you. I also doubt your background knowledge of the Constitution supercedes President Obama or Justice Kennedy -- not to mention AG Eric Holder --on this matter.

[Bjorn Against]

34. I am simply telling you what the Constitution says

Maybe I haven't studied Constitutional law for as many years as Obama or Kennedy have, but that doesn't mean I can't read the words of the sixth amendment which are very clear and it does not make the exceptions that you insist are there. You accuse me of clinging to a "dogmatic insistence" but you are doing the same thing by insisting the interpretation you cite is the only correct interpretation. There are bad precedents out there, and you are citing what I believe is a bad precedent.

[ClarkUSA]

37. But you're still ignoring all constitutional text and historical precedence on the matter.

You remind me of NRA advocates who quote one sentence in the Second Amendment to the exclusion of acknowledging all other
constitutional text and historical precedence relating to the issue of gun ownership in the 200+ years since the Bill of Rights was
written.

[Bjorn Against]

41. No I am not ignoring all constitutional text.

My interpretation of the Constitution is held by many others including the ACLU which is an organization that has many Constitutional scholars as part of its membership. Your interpretation of the Constitution is not the only one out there no matter how much you may like to believe it is.

[ClarkUSA]

43. And here I thought only uberconservatives like Justice Scalia were strict constructionists...

You're entitled to your opinion -- btw, do you have a link to the quote where ACLU lawyers believe all foreign detainees should have public trials due to one word in one sentence in the Sixth Amendment? -- but I rest easy knowing that President Obama is a constitutional lawyer being advised by some of the best progressive legal minds in the country.

[Bjorn Against]

46. Go to ACLU.org, right now it is the top item on their home page

No they don't base their entire argument on a single sentence, but that sentence certainly does represent an important part of their argument. I don't base my entire argument on that single sentence either, but I was focusing on that sentence because I believe that sentence makes a very clear point as to why military tribunals are wrong.

[ClarkUSA]

47. So you cannot back up your claim that the ACLU agrees with your point re: public trials?

I didn't think so.

[Bjorn Against]

50. Sure I can, here are just a few links.

http://aclu.org/safefree/detention/39601prs20090515.html

http://www.aclu.org/natsec/emergpowers/12475leg20020115.html

http://www.aclu.org/privacy/gen/14832res20020506.html

http://www.aclu.org/natsec/warpowers/12505prs20020417.html

[ClarkUSA]

51. Please provide quotes from these links. I do not see anything that backs up your claim.

[Bjorn Against]

52. Here you go...

NEW YORK – In a striking blow to due process and the rule of law, the Obama administration has decided to revive the fatally flawed military commissions system to prosecute certain Guantαnamo detainees, according to news reports.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust. Tweaking the rules of these failed tribunals so that they provide 'more due process' is absurd; there is no such thing as 'due process light.' If the administration's proposed rules really bring these proceedings in line with constitutional requirements, there is no reason not to use our tried and true justice system. If they don't, these tribunals have no place in our democracy.

Secret Evidence. We urge that any procedures the Department proposes to safeguard classified information must guarantee a defendant the ability to confront the prosecution's evidence and the public's right to access judicial proceedings, and uphold President Bush's policy of ending the use of secret evidence. In that regard, we urge the Department to consider using procedures modeled on Rule 505 of the Military Rules of Evidence, which offers the government and the defendant rights which are similar to those afforded criminal defendants in criminal courts under the Classified Information Procedures Act (CIPA).

The right of a defendant to confront the evidence and witnesses against him is not only basic to our the fundamental system of justice, as reflected in the Sixth Amendment, but also is a fundamental part of any fair system of justice. It is explicitly protected by Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a signatory.

WASHINGTON - The American Civil Liberties Union today urged Congress to maintain its oversight function regarding further American military deployments, saying that U.S. soldiers should not be put in harm's way without specific approval from Congress. The ACLU also said that the legislature has not authorized military tribunals.

"The executive branch has not been given, and under our Constitution cannot be given, a free ride regarding military actions abroad," said Timothy Edgar, ACLU Legislative Counsel. "Congress' authorization of force contained limits. The President must take seriously his obligations to Congress before more troops are put in harm's way."

A hearing before the Constitution Subcommittee of the Senate Judiciary Committee this afternoon examined the application of the War Powers Act on the current "war on terrorism." Edgar applauded the subcommittee for its conscientiousness in keeping Congress "in the loop."

The ACLU said that Congress must be careful not to allow the President to overreach the mandate contained in September's authorization of force resolution, which only allows the deployment of troops against those connected to the September 11 terrorist attack. Any other military action, the ACLU said, must be authorized by the War Powers Act, the landmark law passed after Presidents Johnson and Nixon escalated the war in Vietnam without specific legislative approval and in defiance of the Constitution's design.

These are just a few of the things the ACLU has to say about this, they clearly say that military tribunals are unconstitutional and they make clear that because there was no declaration of war all these defendants are in fact criminal defendants and have the same rights as all other criminal defendants.

With that I have to end this debate because I have something going on tonight and I can't spend any more time in front of the computer.

[ClarkUSA]

54. Nothing in this quote "agrees" with your claim re: "public" trials via the Sixth Amendment, though.

[Bjorn Against]

57. Here is another link which clearly does make that argument.

"Military commission proceedings that ignore the Constitution fly in the face of over 200 years of law establishing the right to a fair and public trial," said Denny LeBoeuf, Director of the ACLU's John Adams Project. "The flawed military commission proceedings cannot possibly deliver real justice, and any outcome of this process will immediately be suspect."

http://www.aclu.org/safefree/detention/37680prs20081103.html

Happy now? I really do have to leave this time or I am going to be late, but I provided your link and it clearly states that military commission hearings violate the right to public trial so now you can no longer deny that the ACLU agrees with me on this specific argument.

[ClarkUSA]

59. Do you have anything more current than 11/08? Pres. Obama has restored habeus corpus & due process.

Detainees will be getting a fair trial based on habeus corpus and due process now. Does the ACLU still presently think that all
foreign detainees at Gitmo deserve a public trial based on the Sixth Amendment when the men and women serving in our own
military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been
called into service?

[Bjorn Against]

63. The ACLU has not changed their position on the sixth amendment in the course of the past six months

You asked for the link I provided it, I also pointed you to their home page which shows opposition to Obama's policy on military tribunals as the top item on their home page right now. I have provided you multiple links which have clearly stated what you were looking for, I am done with this thread now.

[mkultra]

69. your interpretation of the six amendment is wrong

The fifth amendment requires indictment by a grand jury, but specifically excepted from that requirement are "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."

It was long ago settled that the sixth amendment right to a trial by jury is limited to the same group of people entitled to the benefit of grand jury indictment specified in the fifth amendment.

so while your cherry picked selection from the constitution does make your point appear correct, it fails under any intelligent scrutiny.

[ClarkUSA]

79. The ACLU has jumped the shark on this issue; their Bush-Obama doctrine ads are an example.

You provided one link with a relevant quote after much inquiry, not "multiple links". As far as I'm concerned, they too are ignoring
constitutional text and historical precedence in their absolutist strict constructionist approach. It's ridiculous to argue that foreign
detainees should get rights not available to members of the military.

[Warren Stupidity]

64. You made about 14 demands for the explicit words 'public trial'

coming directly from the ACLU and then when provided with exactly that, you turned around and demanded 'something more up to date'. Sheesh.

[ClarkUSA]

80. It took awhile to get just one untimely quote that dates back to the BushCo era.

I expected a timely quote from the ACLU that takes into account the significant changes implemented by President Obama
since he took office. There is none, I gather.

[Usrename]

67. Are the detainees civilians or are they POWs?

If they have POW status, then they do deserve a different treatment since they cannot be tried for legal acts of war, such as killing a whole bunch of people, which can be perfectly legal on the battlefield. Killing someone in a war would not necessarily be considered a war crime. And if they are considered POWs and they are being accused of war crimes, then by all means they should face a military tribunal, and that does seem appropriate.

But, if they do not have POW status, then what exactly is the rationale for a military tribunal? If they are not POWs then they can be charged with a crime in a civilian court for committing what would otherwise be legal acts of war, such as killing a whole bunch of people. What would be the reason for having a military tribunal if they could be charged in criminal court?

It doesn't make any sense at all. Maybe you would like to explain.

Did General Washington impanel military tribunals to deal with people who were not accused of any crime, or who committed crimes far removed from the battlefield, in other words people who could have been brought to justice in a criminal court?

[vaberella]

77. I believe they are POWs... look to post #22. n/t

[dflprincess]

65. When Washington did it, there was no Constitution to violate

so trying to pretend his doing it makes it okay, just doesn't work.

[ClarkUSA]

81. You're wrong. President Washington tried a British spy in 1780 via military tribunal.

In 1780, American soldiers apprehended a British spy, Major John Andrι, who had met with the American general Benedict Arnold after maintaining a secret correspondence with him. At the time, Arnold was commandant at West Point and was willing to betray his country and surrender the fort for £20,000. When Andrι was captured, he had in his boots papers (in Arnold’s handwriting) concerning West Point. He was appropriately tried by a military tribunal. President Washington designated a board of officers to try Andrι. The board, consisting of 14 officers, was assisted by the Judge Advocate. After hearing the case, the board recommended that Andrι be sentenced to death, and he was hanged on October 2, 1780.

[damonm]

109. How could he do that in 1780...

When he wasn't PRESIDENT Washington until 1789? And how could that violate a Constitution that wasn't ratified before 1787?
I generally agree with you, mind. But this doesn't help.

[ClarkUSA]

111. I misspoke.

I meant to say "General" Washington as I did in Reply #23.

And as far as I am concerned, military tribunals have never violated the Constitution until the Military Commissions Act.

[damonm]

112. Thought so - and I agree with you.

[ClarkUSA]

130. lol! President Obama just used this line of fact during his speech.

[mkultra]

70. sorry, but you fail.

the sixth amendment only applies to the groups of people outlined in the fifth amendment as settled by the supreme court. Try reading the entire constitution sometime instead of cherry picking.

[iamthebandfanman]

100. dont let em get under ur skin

freepers did this same thing to anybody over there who had a problem with bush going against supposedly traditional republican party stances (like stopping big government and cutting spending)....
there were actually people at FR who complained about that type of thing at one point and time...

by 2004 those people were long gone off of the website....

let them make assumptions and call people names, it does nothing for their cause... only makes them look silly.


i dont understand why its such a big deal to have disagreements with policy ...
nobody on DU hates president obama, so when they attempt to make it look that way ... it just comes off fake and silly..
they only do it to get a rise outa u, so dont even give them the satisfaction.

they are NO BETTER than the people weve been fighting against the last 8 years.

sticks and stones may break our bones....

[Bluerthanblue]

3. why must you muddy the water with reason?

It's so much easier to just look at the surface, to grab a flashy sound bite and run with it.

:shrug:

(sarcasm aside, the "tribunals" Pres.O's talking about are far different than *'s- thanks for pointing this out)

[emulatorloo]

4. Thanks for posting -- it is good to have the facts, not just the poorly written headlines. EOM

[vaberella]

5. Thanks ClarkUSA---- I can't wait for the presser on this. n/t

[Adelante]

6. Thank you

I am so tired of the twisting going on here.

[Metta]

7. Minor changes according to a JAG on Rachel last night. Coerced evidence still admissible.

He administers the commissions at Guantanamo and has a client there. ... says the changes amount to window dressing at best and still deny justice.

http://www.youtube.com/watch?v=oNyG7S1Vb00


Edited to include link.

[ClarkUSA]

17. Evidence obtained through torture is banned; hearsay is restricted as it is in civilian courts

"Under the Bush system, hearsay evidence had been allowed in the commissions, unless the defendant could prove it was unreliable. Obama is proposing to flip that responsibility, by disallowing hearsay unless the prosecution can prove it is reliable.

Hearsay, or evidence heard secondhand, is generally admissible in civilian US courts only under certain restrictive conditions.

[Metta]

20. Thanks for pointing that out.

:hi:

[Bjorn Against]

8. Would these be public trials? If not they are illegal

Here is what the sixth amendment of the Bill of Rights says...

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

If these trials are not going to be public then they are in violation of the bill of rights and they are illegal. Period.

[ClarkUSA]

26. Constitutional text and historical precedence show otherwise. See reply #25.

Link: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8412739&mesg_id=8413157

[Bjorn Against]

27. Here is the Constitutional text...

"ALL criminal prosecutions", when it clearly says the word "all" that doesn't leave much room for interpretation.

[ClarkUSA]

30. Did you even read reply #25? There is more to constitutional text than the Sixth Amendment.

I shall repost reply #25, because I do not want to paraphrase myself:

The Fifth Amendment requires indictment by a grand jury, but specifically excepted from that requirement are "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." In other words, the men and women serving in our own military forces are not entitled to the benefits of trial in civilian courts, nor are civilians serving in the militia when they have been called into service. It would be odd to read the Fifth Amendment as affording greater access to civilian courts to non-uniformed soldiers of terrorism waging war on the United States than it provides to our own soldiers and civilians.

The Sixth Amendment provides that in "all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." But it was long ago settled that the Sixth Amendment right to a trial by a petit jury is limited to the same group of people entitled to the benefit of grand jury indictment specified in the Fifth Amendment.

Moreover, in Article 106 of the Uniform Code of Military Justice, Congress has itself authorized the President to try anyone acting as a spy by a general court-martial or by a military commission, and in Article 104 has authorized trial by court-martial or military commission of "Any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly." Similar provisions were relied upon by the Supreme Court in the 1942 case of Ex Parte Quirin, when it upheld FDR’s decision to try by military tribunal rather than civilian court German saboteurs who had come ashore from a German submarine concealed in the waters off the U.S. coast.

In short, the Constitution’s text as well as historical precedent provide ample support for Presidents' decision to utilize military tribunals.

[Bjorn Against]

32. Yes I read it, but the text of the sixth ammendment uses the words "all criminal prosecutions"

You can try to spin those words all you want, but I have read what you posted more than once and I don't see any reason why what you wrote should make me believe that the Constitution does not actually mean what it says. Not all precedent represents an accurate reading of the Constitution, the sixth amendment is very clear and when the Constitution says "all" I am going to take it at its word and not base my thoughts on how the people in power have tried to undermine it.

[ClarkUSA]

35. Then you're deliberately ignoring the entire body of constitutional text and historical precedence.

You are entitled to your opinion but it doesn't change the facts as I've tried to explain them to you. I also doubt your background knowledge of the Constitution supercedes President Obama or Justice Kennedy -- not to mention AG Eric Holder --on this matter.

[Bjorn Against]

36. I cited a fact, and your explanations don't change those facts.

I doubt your background knowledge on the Constitution supercedes those people you cite either, but there are lawyers at the ACLU who do have background knowledge which supersedes any of those people and they agree with me.

[ClarkUSA]

38. Ignoring all consititutional text and historical precedence on the matter is suspect.

You remind me of NRA advocates who quote one sentence in the Second Amendment to the exclusion of acknowledging all other
constitutional text and historical precedence relating to the issue of gun ownership in the 200+ years since the Bill of Rights was
written.

As for ACLU lawyers, I'd like a link to a specific quote where they agree with the point you are making about the "all" in the Sixth
Amendment as meaning there should be public trials of foreign detainees. By the way, by no means do I consider the ACLU the
last word on defining constitutional text and historical precedence, even though I used to be a member.

[Bjorn Against]

39. I am not ignoring all constitutional text, but you are insisting I should ignore the key text

The Constitution itself is the key text, and if anyone is ignoring it it is you. I quoted it directly and you only gave me other people's interpretations of that text, I am entitled to my own interpretation and there are many Constitutional scholars who agree with me.

[ClarkUSA]

42. You're spinning what I said. I gave you clear facts re: constitutional text & historical precedence

The 1942 Supreme Court Ex Parte Quirin ruling cannot be dismissed as "other people's interpretation of that text" so easily, nor can Article 106 of the Uniform Code of Military Justice, when Congress has itself authorized the President to try anyone acting as a spy by a general court-martial or by a military commission or Article 104 which authorized trial by court-martial or military commission of "Any person who aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly."

I rest easy disagreeing with you based on the entire body of constitutional text and historical precedence dating from George Washington to FDR.

[Bjorn Against]

44. Supreme Court rulings do represent other people's interpretations of the text

Supreme court justices make their own interpretations of the text all the time, and there have been many cases throughout history when the Supreme Court has made bad rulings. The Uniform Code of Military Justice is not the Constitution, and Congress giving the President authorization to do something does not mean that Congress is following the Constitution. I read the sixth amendment and I believe it is very clear that criminal trials need to be public, the interpretations of people in positions of power does not change my interpretation.

[ClarkUSA]

45. And here I thought only uberconservatives like Justice Scalia were strict constructionists...

You're entitled to your opinion -- btw, where's that link to the quote where ACLU lawyers "agree" with you and believe that all foreign detainees should have public trials due to one word in one sentence in the Sixth Amendment?

Again, I rest easy knowing that President Obama is a constitutional lawyer being advised by some of the best progressive legal minds in the country, so it is quite easy to disagree with your strict constructionist interpretation of one word in one sentence of the Sixth Amendment.

[Bjorn Against]

48. I believe in the language of the Constitution, that does not make me like Scalia.

Scalia recently made a statement that he believes that the schools should be able to search kid's underwear without a warrant in order to see if teenage girls are hiding aspirin in their panties. I am not making this up, he actually made that argument and that is not the kind of argument that someone who respects the fourth amendment would make. I am sick of hearing people like him are "strict constructionists" who stick to the words of the Constitution, as he will clearly ignore those words when it suits his agenda.

And by the way I am not a "strict constructionist" by the traditional definition of the words, I simply don't think we can spin the very clear language of the bill of rights. I do see some ambiguities to the text in some places, I think the second amendment is unclear as to what constitutes "arms" for example and those parts are open to interpretation. The word "all" seems pretty straightforward to me however, and I don't see much room for interpretation there.

[ClarkUSA]

49. Your focus on one word in one sentence in the Sixth Amendment is strictly constructionist in nature.

NRA advocates are just as convinced in their strict constructionist interpretation of the Second Amendment and they dismiss the entire body of latter constitutional text and historical precedence using many of the same arguments as you.

I happen to disagree with both of you, based on the whole of constitutional text and historical precedence up until this point in American history. Ergo, we'll have to agree to disagree.

[Name removed]

72. Deleted sub-thread

Sub-thread removed by moderator. Click here to review the message board rules.

[jberryhill]

75. That's kind of an odd statement in your subject line....

Indeed, Supreme Court rulings are "other people's interpretations" of the text. However they are something more than that, since they are controlling interpretations of the text.

[mkultra]

71. your ignoring the supreme court interpretation of the sixth

[vaberella]

78. You've been added to my buddy list becau se you make very sound arguments. n/t

[mkultra]

82. wow, really?

I'm honored.

[Wednesdays]

9. K&R

:kick:

[firedupdem]

10. Thanks ClarkUSA

I appreciate the facts being out there.

[ClarkUSA]

113. Glad to do it.

:fistbump:

[backscatter712]

11. It is an improvement.

I'm definitely encouraged by these new rules, especially the rule that forbids the use of tortured-out "evidence".

Bush's military tribunals were nothing but kangaroo courts. Hopefully, these will be an improvement, though I do wish that the detainees accused of crimes were tried in a real court.

[ClarkUSA]

131. Yes, it is.

Pres. Obama has also asked Congress to change the 2006 law on which the current tribunal system is based, so as to make more sweeping reforms in the future. It's too bad so many are so quick to judge instead of giving the DoJ, Congress, and President Obama the time needed to work out the terrible mess BushCo left us.

[jgraz]

13. Then why can't they hold them on US soil?

Is there something about the *real* American system of justice that's inadequate for handling these detainees?

[ClarkUSA]

14. No final decision has been made but lawmakers from BOTH parties don't want detainees in their states

Gitmo is scheduled to be closed by Jan. 2010. However...

“Many lawmakers from both parties are adamant that they do not want Guantαnamo detainees transferred to federal facilities within their states... "No final decision has been made with regard to what is going to happen to those 241 people who are in Guantαnamo, those who would be eligible for release or transfer…. We’re still in the process of trying to make the determination about who’s going to be prosecuted who is eligible for transfer or release,” said Attorney General Eric Holder> at a House Judiciary Committee hearing on Thursday.

[jgraz]

16. Let me rephrase: why are they *legally prevented* from holding these tribunals in the US?

It has nothing to do with idiotic lawmakers don't understand that these prisoners will be kept behind bars.

[ClarkUSA]

18. "Under the new rules... judges would be able to establish the jurisdiction of their own courts."

[Old Hank]

15. The shoe bomber was successfully convicted in Federal court

"On 30 January 2003, he was found guilty on terrorism charges at a federal court in Boston, Massachusetts." He was sentence to life imprisonment.

Zacharias Moussaui was also convicted in Federal Court if I'm not mistaken.

What is wrong with Federal Courts?

http://en.wikipedia.org/wiki/Richard_Reid_(terrorist)#Trial_and_verdict

[ClarkUSA]

22. The shoe bomber was not captured in a field of battle. He was a domestic terrorist.

Military tribunals are designed to try members of enemy forces during wartime. The United States has made use of military tribunals or commissions, rather than rely on a court-martial, within the military justice system, during times of declared war or rebellion. General George Washington used military tribunals during the American Revolution. Commissions were also used by General (and later President) Andrew Jackson during the War of 1812 to try a British spy; commissions, labeled "Councils of War," were also used in the Mexican-American War. The Union used military tribunals during and in the immediate aftermath of the Civil War. Military tribunals were used to try Native Americans who fought the United States during the Indian Wars which occurred during the Civil War. The so-called Lincoln conspirators were also tried by military commission in the spring and summer of 1865. Military commissions were also used in the Philippines in the aftermath of the Spanish-American War and so on and so forth...

[IndianaGreen]

19. This is what we call caca-del-toro back in the barrio

Obama is supposed to support the Constitution, not sugar coat the illegal Bush policies.

[ClarkUSA]

56. How so? President Obama is supporting the Constitution by making these changes.

Just how do these changes "sugar coat the illegal Bush policies" if they are the antithesis of the Military Commissions Act and restore due process?

[depakid]

21. Let's see how well that spins with the rest of the world

Americans love their feel good proclamations- I guess we'll see (hopefully) how it actually plays out in the process.

[snowdays]

29. No, you are wrong as the WH is afraid of the federal courts.....

read this.




http://www.nytimes.com/2009/05/16/us/politics/16gitmo.html?_r=2&ref=politics&pagewanted


............Officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said that questions surrounding confessions made after the brutal treatment of some detainees had become an obstacle. Though some detainees, in so-called clean confessions, admitted to terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard in law enforcement.

Federal courts would likely ban such confessions, lawyers said, and, in some cases, convictions may be nearly impossible without them. The most prominent of the military commissions cases seeks the death penalty for five detainees charged with planning the Sept. 11, 2001, attacks, including the self-described mastermind, Khalid Shaikh Mohammed.

Administration officials said that some detainees would be prosecuted in federal courts, but did not specify which ones.

[mvd]

58. Personally, I'm against the use of tribunals here

They have not resulted in one conviction, and the fact there was torture could cloud everything to the point where only courts of law would be practical. Even with a protection aimed at disallowing evidence gotten from torture.

I do not necessarily think the President has gone back on campaign promises - nor do I question his motives. When his commanders advise things, I don't expect him to go against their advice. I wish he would, but I know the national security environment out there post 9/11. I just think the military is not looking at things objectively due to their involvement in torture.

[ClarkUSA]

119. I disagree. President Obama addressed this issue in his cover interview in this week's Newsweek.

Link: http://www.newsweek.com/id/197891/output/print

On the subject of terrorism, the Austrian Interior Minister—you may know this—has said if the detainees are no longer dangerous, why don't they just stay in the U.S.?

Well, look, this is an example of a hard problem. And I acknowledged this before I was sworn in. You've got a situation where, in some cases, individuals should not have been detained, but after having been detained for six years may not have a very friendly view towards the United States. You have some people who definitely should have been detained and should have been immediately charged, but were not and, in some cases, because of the manner in which evidence was obtained, it makes—it's going to be very difficult for us to prosecute them in Article III courts.

So this is a mess that we've got to clean up and it's not going to be neat. But what we're striving towards is a situation in which Guantαnamo is no longer a recruitment tool for Al Qaeda; that we are following core principles of due process; that individuals who are dangerous are still detained, but they are detained and/or tried in some fashion that has international and national legitimacy and is consistent with our Constitution.

And so that's going to require some work and there are going to be instances where not everybody is happy with our decisions, but over time we're going to be able to work through this.

[DU GrovelBot]

33. ## PLEASE DONATE TO DEMOCRATIC UNDERGROUND! ##

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[jenmito]

40. K&R! Thanks for all of the facts! n/t

[hugo_from_TN]

53. Question - If KSM is convicted in a secret military tribunal and is put to death,

Will the citizens of the world think that justice was served? Will you?

[ClarkUSA]

55. What has that got to do with the OP subject matter? I don't usually deal in hypotheticals.

But since you asked so nicely, I'll make an exception: since KSM admitted to 9-11 planning even before his torture, I am not
going to shed a tear if he is sentenced to death. I am a born and bred New Yorker who has friends who worked five blocks
from Ground Zero, btw.

[usregimechange]

60. kick

[uponit7771]

62. DU Drama advocates: "........WE HATE FACTS DAMMIT! ....."

[vaberella]

76. Ain't that the truth!! n/t

[Better Believe It]

66. The only method in accordance with the Constitution is a normal trial before a federal judge.

Anything else is suggested only because the government lacks the evidence to convict people of terrorist activities.

Tribunals are a way around the Constitution if the right-wing Supreme Court judges approve such tribunals and thereby decide to betray the Constitution, their oaths and overturn the rule of law.

[mkultra]

73. that only applies to criminal procedings

these cases are not criminal as outlined in the fifth amendment.

[Better Believe It]

84. So they are not criminals? If so, why are they being held against their will?

If they are not violating any laws or committed any crime on what legal basis are they being held as prisoners on U.S. territory?

Are they POW's?

Are they undocumented immigrants who somehow found their way into the U.S. military installation at GITMO?

Are they being held under the Bush "war on terror" doctrine which strips so-called combatants in that war of all protections afforded under our Constitution and international law?

I'm not attorney so perhaps you can explain the legal basis for their detention without trial that has been upheld by the federal courts.

[mkultra]

85. their status fluctuates between enemy combatant and POW.

its hard to say. What is very clear is that they are not the criminally accused in the strictest sense. This is defined in the fifth amendment.

[endarkenment]

90. There is no such legal status: enemy combatant.

That is a fiction invented by the Bush administration. If these people are POWs then a whole lot of people in our government need to be charged with war crimes, as we have violated the GC on the treatment of POWs.

The fifth amendment wording applies to military courts for the trial of our military personnel. Extending that language to cover people we kidnap and imprison in extra-territorial torture chambers is startlingly dishonest.

[Perky]

93. The problem is that POW is language specifice to delared hostitlieites between states

and the Military does not have police powers.

SO it is largely ans issue of categrozation before you get to the very valid issues of how you go about adjudication.

[endarkenment]

98. We declared hostilities against Afghanistan and against Al Qaeda

Most of the gitmo detainees were rounded up by friendly militias in Afghanistan while we were in a state of war against Afghanistan, and these people should be treated as prisoners of war. That is the position of the ICRC, and of other international organizations. Our rogue state behavior in our stupid GWOT has put us outside international law. It was my hope that this administration would take actions to bring us back within the community of civilized nations, that hope is slipping away as we proceed to embrace more and more of the GWOT bullshit.

[mkultra]

101. well, i must agree with you here for the most part

except for the notion of POW status. It is highly questionable to simply cover tham as POWs considering their lack of fidelity to a government.

I must agree with the rest of what you say in regards to the manner in which they where rounded up and held. In a Bush free world, the mistakes of picking up anyone like a giant vacuum cleaner would be resolved in the tribunal process. This process would normally be done with reason and involving council.

Obama, is restarting the tribunals with a completely new set of protocols. The hopes are that we can quickly identify who is a real threat and who inst so they can be moved and gitmo closed.

Gitmo is an outrage that frankly makes me very angry. I do know though that we cant just throw open the doors and let them all out.

[mkultra]

99. the term enemy combatant is a legal term that is linked to the term "unlawful combatant"

in the geneva conventions. These terms where sorted out in '42 by the supreme court decision Ex parte Quirin


Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

The fifth amendment has been ruled to apply more broadly than you are interpreting it. As for those in gitmo, while Bush erred in not giving them access to council, they are still no entitled to full protection under US criminal law. They are not "criminals."

[endarkenment]

104. Neither case applies to the poorly uniformed taliban militia.

Which category constitutes some number of the detainees, the remainder were either kidnapped in absurd post conflict bounty roundups by friendly militias or kidnapped by our intelligence services outside of any battlefield situation. The legitimate taliban militia POWs should simply be repatriated to Afghanistan, as per the GC. They have committed no crime at all. The rest either have to be tried in criminal court or let go, as they are not properly the authority of any military tribunal. As all of these people were tortured, I will state simply that none of them can be charged with any crime for which any information at all was obtained through torture, regardless of other supporting information. We have poisoned that well, and now justice requires that we suffer the consequences, not our victims.

[mkultra]

110. i went back and read the GC provisions

Those that are clearly just citizens picked up by crazy malitia and handed over to us would probably qualify more readily as "protected persons" if we could identify them as such. Otherwise they must be considered POW until a military tribunal determines to keep them as POW or be reclassified as unlawful combatant.


Make no mistake, all parties involved are entitled to humane treatment and the self revealed intelligence is worthless due to torture.

[Colobo]

74. Good for Obama.

[Better Believe It]

86. Nothing like holding people in prison for years without any due process

Isn't that what they use to do in Russia and China?

[ClarkUSA]

87. Um, BushCo did that. President Obama has restored habeus corpus and due process.

FYI: in China and Russia, they shoot terrorists in front of firing squads, if they are lucky. Most get a bullet in the head wherever
they are caught.

[Better Believe It]

102. So you believe that all those held at GITMO are terrorists because Dubya/Cheney said so!

"FYI: in China and Russia, they shoot terrorists in front of firing squads, if they are lucky. Most get a bullet in the head wherever they are caught."

What's your point? This is not Russia or China.

You assume that all of those who have been imprisoned at GITMO are terrorists because Dubya and Cheney said so.

Do you have any evidence and credible links to back up your claim?

Now if your captives are not POW's and are not criminals what the frick are they???

They are one or the other so please don't bend, distort and undermine the Constitution to justify their false imprisonment hoping a right-wing Supreme Court will affirm this attack on our Constitution.

[ClarkUSA]

108. I never said anything like that but I applaud your obvious talent for fiction writing.

"FYI: in China and Russia, they shoot terrorists in front of firing squads, if they are lucky. Most get a bullet in the head wherever
they are caught."

What's your point? This is not Russia or China.

Um, I was replying to your original comment about Russia and China (see reply #74) which started this subthread. As for the rest
of your rant, your false assumptions regarding my POV re: the foreign detainees at Gitmo as well as your obvious lack of knowledge
of constitutional text and historical precedence regarding this issue precludes further discussion. Reread my comments throughout
this thread for the facts. I am not interested in arguing.

[Better Believe It]

115. 90% of those held captive at Gitmo are not terrorists. So why do you want to keep them in prison?

[ClarkUSA]

116. How do you know this is a fact? Link, source? I'm not interested in opinion pieces.

[Better Believe It]

117. Is Lawrence Wilkerson, former Chief of Staff to Colin Powell, a credible enough source for you?

90% of Gitmo prisoners innocent:-Lawrence B. Wilkerson deputy to Colin Powell
by Moin Ansari
March 24, 2009

Lifelong Republican, and chief of staff to former Secretary of State Colin Powell, Lawrence B. Wilkerson, stepped forward in ablog post on Tuesday to say not only that there are still innocent people being held at the detention camp at Guantanamo Bay, not only that we’ve been holding innocent people there for more than six years, but that the U.S. government has known all along that they pose no risk to national security.

Wilkerson told the Associated Press that he was informed by briefings, and military commanders, that big brass knew those captured had nothing to do with Al Qaeda, or the so-called war on terror, but held them anyway as information-gathering tools for a so-called “mosaic ” of intelligence.

Moreover, Powell’s former chief of staff insists that the process by which these “enemy combatants” were so designated itself was shabby and incompetent, and that those sent to Gitmo weren’t properly “vetted” before they were hauled off to Cuba. Pakistanis, Wilkerson added, often acted as bounty hunters, securing as much as $5,000 a head.

While human rights groups, and others, have speculated for years about the dearth of bona fide terrorists at Gitmo, the information Wilkerson provided this week was classified until now.

The former chief of staff to Colin Powell acknowledges, too, that both Rumsfeld and Cheney knew innocent men were being detained as enemy combatants, without charges, were held indefinitely, and they did nothing about it as “to have admitted this reality would have been a black mark on their leadership” which only goes to show that while there might be innocent people left at Gitmo, there aren’t many left in our nation’s capital.

According to Wilkerson, fewer than 10% of the 240, or 24 men, who remain at the detention camp, in Cuba, can be considered a security risk, yet a former vice president, Dick Cheney, would aim to convince us that releasing even a single detainee would increase our terror threat. Didn’t the fact that half of the executive branch went missing for eight years following 9/11 pose a terror risk to this republic? We are only starting to learn the kind of mischief Cheney was hiding.

Please read the entire article at:

http://rupeenews.com/2009/03/24/90-of-gitmo-priosners-i... /

And read Lawrence Wilkerson's article at:

http://www.thewashingtonnote.com/archives/2009/03/some_... /

[ClarkUSA]

123. The same Colin Powell who lied to the United Nations and pushed the WMD case for pre-emptive war?

How does Wilkerson know? What's his proof? Will he be testifying as a witness for these alleged innocents? I sure hope so, if he
has good evidence for his comments; personal opinion won't cut it. But forgive me if I and the Justice Department don't take his
word on it. And why is his boss silent as a tomb on this matter? Shouldn't Colin Powell be speaking up if this were really true
instead of bickering with Dick Cheney?

[goclark]

95. Good.For.Obama

:bounce:

[endarkenment]

88. Which is why they are held off shore and out of the reach of a real judge.

Or perhaps not exactly 'in line with the rule of law'?

[ClarkUSA]

89. "Under the new rules... judges would be able to establish the jurisdiction of their own courts."

Also, one of the first things President Obama did after being sworn in was to order the closing of Gitmo.

[endarkenment]

91. Gitmo has not been closed. It is not even scheduled to be closed.

An intention to close Gitmo is the best that can be attributed to this administration.

If these military tribunals are constitutional then bring them within our territory where their constitutional legality can be tested within our court system.

[ClarkUSA]

92. Pres. Obama ordered the Guantαnamo detention facility to be closed by Jan. 22, 2010 (link ->)

Obama Order to Shut Gitmo, CIA Detention Centers
Obama Breaks With Bush Policy; Opponents Say Changes Put U.S. Safety at Risk
By JAKE TAPPER, JAN CRAWFORD-GREENBURG and HUMA KHAN
Jan. 22, 2009

In a sweeping break from Bush administration policies, President Obama signed three new executive orders, the first of which calls for shutting down the controversial Guantanamo Bay detention center "as soon as practicable, and no later than one year from now," as ABC News first reported Wednesday.

If these military tribunals are constitutional then bring them within our territory where their constitutional legality
can be tested within our court system.

Under the new rules, military commission judges would be able to establish the jurisdiction of their own courts.

[endarkenment]

96. Which closure is unfunded and stalled. It remains an intention.

[ClarkUSA]

106. No, it is an executive order, which is more than "an intention." The rest is par for the course.

[endarkenment]

120. See yesterday's events in the senate.

Obama has an intention to close gitmo, but he is unable to act on his intention.

[ClarkUSA]

124. The Senate wants to see plans so as not to write a blank check. That's understandable.

bama has an intention to close gitmo, but he is unable to act on his intention.

I'm going to wait to hear Pres. Obama's speech before making premature judgments. It's a mistake to underestimate this president.

[high density]

94. An intention to close Gitmo...

You make it sound like that is a bad or otherwise worthless thing. He signed that executive order two days into his presidency. I fail to see a way he could make this process go any quicker than it's playing out right now.

Promising to return America to the "moral high ground" in the war on terrorism, President Obama issued three executive orders Thursday to demonstrate a clean break from the Bush administration, including one requiring that the Guantanamo Bay detention facility be closed within a year.

http://www.cnn.com/2009/POLITICS/01/22/guantanamo.order/index.html

[endarkenment]

97. It is in limbo. It requires congressional action to fund it and is stalled.

It is currently an intention.

[ClarkUSA]

107. Congressional action takes time w/the GOP 4ever obstructing but the executive order still stands.

[endarkenment]

122. GOP? I guess that includes a large number of nominal Democratic Party senators. nt.

[ClarkUSA]

125. I agree that DLC conservaDems are wimps but it's reasonable to ask for a plan.

It gives them cover from charges of rubber stamping a blank check and allows Pres. Obama to use the bully pulpit to sell
the eventual plan to the American public.

[grantcart]

103. they will still be under the jurisdiction of the Supreme Court, which has ruled in their

favor every time so far.

[endarkenment]

105. If a case can get to the SC.

It has been exceedingly difficult to get any cases there.

[ibegurpard]

114. Why?

Why not just try them in our courts?

[ClarkUSA]

118. Have you read through this thread? This point has been addressed.

Today, the Senate voted to strip funding for Gitmo's closing "until there's a plan" for where the government is going to put them:
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5684335

Many Senators do not want the detainees in their states. I don't blame them for not wanting to write a blank check. The Pentagon
says the Jan. 2010 date is still operable.

[endarkenment]

121. a total bullshit excuse.

If people held without charges for years on end and tortured repeatedly on top of it cannot be charged with actual criminal offense under normal legal proceedings then what should happen next is that these people should be released and those responsible for their kidnapping and torture should be indicted and tried in our court systems for the crimes they most obviously have committed.

[ClarkUSA]

126. What are you referring to? The OP content or the Senate Dems who voted down Gitmo funds?

[ClarkUSA]

127. President Obama is about to give his speech on this issue. Live on CNN and MSNBC.

Link to discussion thread: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x8423009

[ClarkUSA]

129. President Obama's Remarks on National Security (FULL TEXT - 10 pages)

President Obama's Remarks on National Security

Obama Remarks on National Security
THE WHITE HOUSE

Office of the Press Secretary
__________________________________________________________________________________________________________________
EMBARGOED UNTIL DELIVERY
May 20, 2009

Remarks of President Barack Obama – As Prepared for Delivery

Protecting Our Security and Our Values

National Archives Museum

Washington, D.C.

May 21, 2009

These are extraordinary times for our country. We are confronting an historic economic crisis. We are fighting two wars. We face a range of challenges that will define the way that Americans will live in the 21st century. There is no shortage of work to be done, or responsibilities to bear.

And we have begun to make progress. Just this week, we have taken steps to protect American consumers and homeowners, and to reform our system of government contracting so that we better protect our people while spending our money more wisely. The engines of our economy are slowly beginning to turn, and we are working toward historic reform of health care and energy. I welcome the hard work that has been done by the Congress on these and other issues.

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. That is the first thing that I think about when I wake up in the morning. It is the last thing that I think about when I go to sleep at night.

This responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

Already, we have taken several steps to achieve that goal. For the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We are investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world's most dangerous people access to the world's deadliest weapons, and launched an effort to secure all loose nuclear materials within four years. We are better protecting our border, and increasing our preparedness for any future attack or natural disaster. We are building new partnerships around the world to disrupt, dismantle, and defeat al Qaeda and its affiliates. And we have renewed American diplomacy so that we once again have the strength and standing to truly lead the world.

These steps are all critical to keeping America secure. But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights –are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.

I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – “to form a more perfect union.” I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.

I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and keeps us safe. Time and again, our values have been our best national security asset – in war and peace; in times of ease and in eras of upheaval.

Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.

It is the reason why enemy soldiers have surrendered to us in battle, knowing they'd receive better treatment from America's armed forces than from their own government.

It is the reason why America has benefited from strong alliances that amplified our power, and drawn a sharp and moral contrast with our adversaries.

It is the reason why we've been able to overpower the iron fist of fascism, outlast the iron curtain of communism, and enlist free nations and free people everywhere in common cause and common effort.

From Europe to the Pacific, we have been a nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and institutions are more resilient than a hateful ideology.

After 9/11, we knew that we had entered a new era – that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out.

Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions. And I believe that those decisions were motivated by a sincere desire to protect the American people. But I also believe that – too often – our government made decisions based upon fear rather than foresight, and all too often trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, we too often set those principles aside as luxuries that we could no longer afford. And in this season of fear, too many of us – Democrats and Republicans; politicians, journalists and citizens – fell silent.

In other words, we went off course. And this is not my assessment alone. It was an assessment that was shared by the American people, who nominated candidates for President from both major parties who, despite our many differences, called for a new approach – one that rejected torture, and recognized the imperative of closing the prison at Guantanamo Bay.

Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable – a framework that failed to rely on our legal traditions and time-tested institutions; that failed to use our values as a compass. And that is why I took several steps upon taking office to better protect the American people.

First, I banned the use of so-called enhanced interrogation techniques by the United States of America.

I know some have argued that brutal methods like water-boarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence, I bear responsibility for keeping this country safe, and I reject the assertion that these are the most effective means of interrogation. What's more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts – they undermined them, and that is why I ended them once and for all.

The arguments against these techniques did not originate from my Administration. As Senator McCain once said, torture “serves as a great propaganda tool for those who recruit people to fight against us.” And even under President Bush, there was recognition among members of his Administration – including a Secretary of State, other senior officials, and many in the military and intelligence community – that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. We must leave these methods where they belong – in the past. They are not who we are. They are not America.

The second decision that I made was to order the closing of the prison camp at Guantanamo Bay.

For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of Military Commissions at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setbacks, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over five hundred and twenty-five detainees were released from Guantanamo under the Bush Administration. Let me repeat that: two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.

There is also no question that Guantanamo set back the moral authority that is America's strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. Indeed, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law – a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

So the record is clear: rather than keep us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That is why I argued that it should be closed throughout my campaign. And that is why I ordered it closed within one year.

The third decision that I made was to order a review of all the pending cases at Guantanamo.

I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we do not have the luxury of starting from scratch. We are cleaning up something that is – quite simply – a mess; a misguided experiment that has left in its wake a flood of legal challenges that my Administration is forced to deal with on a constant basis, and that consumes the time of government officials whose time should be spent on better protecting our country.

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall – when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place.

There are no neat or easy answers here. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. Our security interests won't permit it. Our courts won't allow it. And neither should our conscience.

Now, over the last several weeks, we have seen a return of the politicization of these issues that have characterized the last several years. I understand that these problems arouse passions and concerns. They should. We are confronting some of the most complicated questions that a democracy can face. But I have no interest in spending our time re-litigating the policies of the last eight years. I want to solve these problems, and I want to solve them together as Americans.

And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I've heard words that are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing, and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold dear. And I will focus on two broad areas: first, issues relating to Guantanamo and our detention policy; second, issues relating to security and transparency.

Let me begin by disposing of one argument as plainly as I can: we are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders – highly secure prisons that ensure the public safety. As we make these decisions, bear in mind the following fact: nobody has ever escaped from one of our federal “supermax” prisons, which hold hundreds of convicted terrorists. As Senator Lindsey Graham said: “The idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.”

We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them. As we do so, we are acutely aware that under the last Administration, detainees were released only to return to the battlefield. That is why we are doing away with the poorly planned, haphazard approach that let those detainees go in the past. Instead, we are treating these cases with the care and attention that the law requires and our security demands. Going forward, these cases will fall into five distinct categories.

First, when feasible, we will try those who have violated American criminal laws in federal courts – courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and juries of our citizens are tough enough to convict terrorists, and the record makes that clear. Ramzi Yousef tried to blow up the World Trade Center – he was convicted in our courts, and is serving a life sentence in U.S. prison. Zaccarias Moussaoui has been identified as the 20th 9/11 hijacker – he was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee – al-Marri – in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania – bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.

The second category of cases involves detainees who violate the laws of war and are best tried through Military Commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot be effectively presented in federal Courts.

Now, some have suggested that this represents a reversal on my part. They are wrong. In 2006, I did strongly oppose legislation proposed by the Bush Administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process and rights for the accused that could stand up on appeal. I did, however, support the use of military commissions to try detainees, provided there were several reforms. And those are the reforms that we are making.

Instead of using the flawed Commissions of the last seven years, my Administration is bringing our Commissions in line with the rule of law. The rule will no longer permit us to use as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms – among others – will make our Military Commissions a more credible and effective means of administering justice, and I will work with Congress and legal authorities across the political spectrum on legislation to ensure that these Commissions are fair, legitimate, and effective.

The third category of detainees includes those who we have been ordered released by the courts. Let me repeat what I said earlier: this has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved fifty detainees for transfer. And my Administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

Finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.

I want to be honest: this is the toughest issue we will face. We are going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

As I said, I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture – like other prisoners of war – must be prevented from attacking us again. However, we must recognize that these detention policies cannot be unbounded. That is why my Administration has begun to reshape these standards to ensure they are in line with the rule of law. We must have clear, defensible and lawful standards for those who fall in this category. We must have fair procedures so that we don't make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. Other countries have grappled with this question, and so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for Guantanamo detainees – not to avoid one. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my Administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

As our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These issues are fodder for 30-second commercials and direct mail pieces that are designed to frighten. I get it. But if we continue to make decisions from within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future. I have confidence that the American people are more interested in doing what is right to protect this country than in political posturing. I am not the only person in this city who swore an oath to uphold the Constitution – so did each and every member of Congress. Together we have a responsibility to enlist our values in the effort to secure our people, and to leave behind the legacy that makes it easier for future Presidents to keep this country safe.

The second set of issues that I want to discuss relates to security and transparency.

National security requires a delicate balance. Our democracy depends upon transparency, but some information must be protected from public disclosure for the sake of our security – for instance, the movements of our troops; our intelligence-gathering; or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

Several weeks ago, as part of an ongoing court case, I released memos issued by the previous Administration's Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, or because I reject their legal rationale – although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush Administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos, we are providing terrorists with information about how they will be interrogated is unfounded – we will not be interrogating terrorists using that approach, because that approach is now prohibited.

In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and held accountable. There is no debate as to whether what is reflected in those photos is wrong, and nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment – informed by my national security team – that releasing these photos would inflame anti-American opinion, and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, endangering them in theaters of war.

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.

In each of these cases, I had to strike the right balance between transparency and national security. This balance brings with it a precious responsibility. And there is no doubt that the American people have seen this balance tested. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq War or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. That causes suspicion to build up. That leads to a thirst for accountability.

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

We are launching a review of current policies by all of those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers – especially when it comes to sensitive information.

Along those same lines, my Administration is also confronting challenges to what is known as the "State Secrets" privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It has been used by many past Presidents – Republican and Democrat – for many decades. And while this principle is absolutely necessary to protect national security, I am concerned that it has been over-used. We must not protect information merely because it reveals the violation of a law or embarrasses the government. That is why my Administration is nearing completion of a thorough review of this practice.

We plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the State Secrets privilege. We will not assert the privilege in court without first following a formal process, including review by a Justice Department committee and the personal approval of the Attorney General. Finally, each year we will voluntarily report to Congress when we have invoked the privilege and why, because there must be proper oversight of our actions.

On all of these matter related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why.

In all of the areas that I have discussed today, the policies that I have proposed represent a new direction from the last eight years. To protect the American people and our values, we have banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming Military Commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and narrowing our use of the State Secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer and more sustainable footing, and their implementation will take time.

There is a core principle that we will apply to all of our actions: even as we clean up the mess at Guantanamo, we will constantly re-evaluate our approach, subject our decisions to review from the other branches of government, and seek the strongest and most sustainable legal framework for addressing these issues in the long-term. By doing that, we can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that; a legacy that protects the American people, and enjoys broad legitimacy at home and abroad.

That is what I mean when I say that we need to focus on the future. I recognize that many still have a strong desire to focus on the past. When it comes to the actions of the last eight years, some Americans are angry; others want to re-fight debates that have been settled, most clearly at the ballot box in November. And I know that these debates lead directly to a call for a fuller accounting, perhaps through an Independent Commission.

I have opposed the creation of such a Commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws.

I understand that it is no secret that there is a tendency in Washington to spend our time pointing fingers at one another. And our media culture feeds the impulses that lead to a good fight. Nothing will contribute more to that than an extended re-litigation of the last eight years. Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort, and our politics on the challenges of the future.

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants – provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: if we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for those core values, then we are not keeping faith with the documents that are enshrined in this hall.

The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last two hundred and twenty two years. But our Constitution has endured through secession and civil rights – through World War and Cold War – because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way. It hasn't always been easy. We are an imperfect people. Every now and then, there are those who think that America's safety and success requires us to walk away from the sacred principles enshrined in this building. We hear such voices today. But the American people have resisted that temptation. And though we have made our share of mistakes and course corrections, we have held fast to the principles that have been the source of our strength, and a beacon to the world.

Now, this generation faces a great test in the specter of terrorism. Unlike the Civil War or World War II, we cannot count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and – in all probability – ten years from now. Neither I nor anyone else can standing here today can say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my Administration – along with our extraordinary troops and the patriotic men and women who defend our national security – will do everything in our power to keep the American people safe. And I do know with certainty that we can defeat al Qaeda. Because the terrorists can only succeed if they swell their ranks and alienate America from our allies, and they will never be able to do that if we stay true to who we are; if we forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals.

This must be our common purpose. I ran for President because I believe that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America – it can and must be a cause that unites us as one people, as one nation. We have done so before in times that were more perilous than ours. We will do so once again. Thank you, God Bless you, and God bless the United States of America.

[ClarkUSA]

128. So much for being like Bush... "Obama Huddles With Human Rights Groups Before Security Speech"

Link: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8422336&mesg_id=8422336