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Among those who are most engaged with them, there is a general consensus that the military commissions created by the Bush Administration were a huge embarrassment. The question is whether they can now be salvaged and turned into something respectable. A leading practitioner, Major David Frakt, says “no.”
Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: They were built on a foundation of legal distortions and illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail…
Among the 200 plus detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in federal court. Of course, if the only evidence of criminality by an individual was obtained through torture and coercion, then that person is unlikely to be convicted in a federal court. But if that is all the evidence we have, then we shouldn’t be prosecuting anyway, whether in a civilian court or a military commission. If the abandonment of the rule of law that resulted in the egregious abuse of detainees may mean that a few “bad men” cannot be prosecuted, perhaps that will serve as a deterrent to such deviations from our core values in the future. The bottom line is that there are simply no advantages to military commissions and no compelling reasons to keep them. Military commissions are not faster, more efficient or less costly than the alternative. Military lawyers have no special expertise in prosecuting or defending complex international terrorist conspiracies. Try the terrorists where they should have been tried all along, in U.S. District Courts.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Number of U.S. congressional districts in which trade with China has produced more jobs than it has cost:
Young bilingual children who learned one language first are likelier than monolingual children and bilingual children who learned languages simultaneously to say that a dog adopted by owls will hoot.
An Oklahoma legislative committee voted to defund Advanced Placement U.S. History courses, accusing the curriculum of portraying the United States as “a nation of oppressors and exploiters.”
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“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”