obama is now saying that his administration will try detainees before a military commission, contrary to what he said as a candidate. the administration says that his commissions will extend more rights to the accused than his predecessor's.
i want to know what exactly those more rights are, and what is still being left out. the whole problem with bush's military commission idea is that it was a way to try people without giving them the rights they would have in a regular court. it wasn't the military commissions per se that was the problem. the problem was the the deprivation of rights. (on that point i seem to disagree with glenn greenwald). in theory, if the military commission system had the same rights as a regular court (including appeals to the civilian court system), i wouldn't have a problem with it. but if the commissions are exactly the same as the courts, what's the point of using commissions? the only reason to use them is as a way to get around some rights, making it easier to get convictions. obama's military commissions with extra rights idea might not be as much of a kangaroo court as bush's version, but it's still a farce.
underlying all of this is a real dilemma. because of the way that the prior administration treated detainees, it's quite possible that they are unprosecutable. evidence obtained through torture is inadmissible. it may be that the cases against these detainees are all tainted. but so what? the rule against the inadmissibility of evidence obtained through torture is there for good reason. coerced information is unreliable. people will say whatever they think their torturer wants them to say when they are being tortured.
maybe when they were picked up, the bush administration actually did have a legitimate case against them. but if they ruined the case with subsequent mistreatment, we can't ever be sure how legitimate it was. if the administration can't prove its case without bending the rules to get a conviction, the accused should go free. that would be a hard choice politically to make. but it still would be the right one. the only one that is consistent with american values. let the bush administration take the blame for ruining these cases. instead, it looks like the obama administration is going to make the bush-era outrage their own.
