Human Rights

Controversy Over Torture Photos and Military Commissions Heats Up in Washington

How far is Obama going to roll back the legacy of Bush's torture policies?

As the mainstream media refocused their torture coverage on Sen. Nancy Pelosi this week, fashioning a What-Did-She-Know? news story out of information that's been known for years, a series of maneuvers by the Obama administration bulldozed hopes that the White House would take the mess it has inherited from Bush and clean it up for good, perhaps even allowing for accountability for those who created it.

Instead, on Wednesday President Obama reversed a decision to release some 2,000 photographs depicting the abuse of prisoners in Iraq and Afghanistan by U.S. soldiers. The photographs, which have been described as more explicit than those that came out of Abu Ghraib -- as one anonymous member of Congress told the Washington Post, 'When they are released, there will be a major outcry for an investigation by a commission or some other vehicle -- were downplayed by Obama as "not particularly sensational" but nonetheless necessary to keep under wraps.

For unremarkable photos, the Obama administration certainly gave a lot of reasons for the turnaround -- but the most politically expedient explanation was the argument that making them public would inflame anti-American sentiment in countries occupied by U.S. troops. The president "believes that the release of these photos could pose a threat to the men and women we have in harm's way in Iraq and Afghanistan," White House Press Secretary Robert Gibbs told reporters on Wednesday, while also adding, dubiously, that, "the President believes that the release of these photos will also provide a disincentive for detainee abuse investigation."

Republicans were quick to praise Obama's move -- "We are still in a war," Senator John McCain reminded everyone. "The publication of those photographs would have given help to the enemy in the psychological side of the war we are in" -- and predictably, the media cast it primarily as another embarrassing snub of the perpetually dissatisfied left, rather than a betrayal of Obama's promises of transparency. "The Left Rises Up Against Obama," read the headline of a Washington Post column by Chris Cilizza, who described it as a "perceived poke in the eye" of the "liberal left" that has prompted doubts over "Obama's commitment to progressive policies."

Elswhere, the move was seen as proof of Obama's political maturity. "Obama Keeps Growing in Office," wrote Michael Goldfarb, McCain's campaign spokesman in The Weekly Standard. "President Obama is now commander in chief, and he has an obligation to the troops under his command that exceeds any promises made to liberal interest groups during the campaign." Over at the Wall Street Journal, editors deemed the decision more than just a decision, calling it "Obama's Photo Epihany," and applauding the president's refusal to capitulate to the "braying from his campaign allies on the left." (It was, as the comfort-seeking Peggy Noonan might say, "a pleasant reversal.")

"The President is learning, albeit slowly, that secrecy has its uses in wartime, and that the real goal of his allies on the left is to make it harder for the U.S. to defend itself," the WSJ concluded, ludicrously.

Indeed, the portrayal by much of the media would suggest that asserting the right to keep things secret in the name of national security -- something the Obama administration is becoming more and more adept at -- is not just a sign of political maturity, it's downright presidential. "No longer a mere senator representing a single state, Obama is now the commander-in-chief, and his reversal highlights the unique burdens that he alone now shoulders," wrote Mark Thompson in TIME magazine. And for good measure, up north, the Canadian National Post called Obama's move "tough but presidential."

What's good for the country, therefore, is keeping things under wraps that might tarnish the image of its leader and its military. As Salon's Glenn Greenwald quipped on Wednesday, nothing spurs more anti-American sentiment than civilian deaths in Afghanistan. Shouldn't we be covering those up, too?"

The Return of Military Commissions

At the same time, another story with more sweeping significance was making headlines alongside Obama's reversal on the torture photos: the Obama administration's reported plan to re-start the military commissions at Guantanamo, that shoddy amalgam of kangaroo courts suspended by Obama in his first days in office. The story had been creeping up for weeks; on May 1, the New York Times ran a story titled "U.S. May Revive Guantánamo Military Courts," reporting that Obama was planning to "amend the Bush administration's system" of terror trials. Then, last weekend, on May 9, the Washington Post reported: "Obama Set to Revive Military Commissions: Changes Would Boost Detainee Rights." According to the Post, "new rules" would "offer terrorism suspects greater legal protections' including the right not to be prosecuted using evidence obtained by hearsay or torture.

If this weren't alarming enough, these reports came at the same time as another little-noticed but major development: news that the Obama administration was appointing a new chief prosecutor for the military commissions: U.S. Navy Reserve Captain John Murphy, whose dubious career highlights include  the prosecution of Salim Hamdan as well as the attempted prosecution of Canadian Guantanamo detainee Omar Khadr, who has been in U.S. custody since he was just 15. Journalist and Guantanamo expert Andy Worthington was one of the first to break the story, recalling the disastrous history of the military commissions, which includes the high-profile resignation of former Chief Prosecutor Morris Davis. 

Davis laid bare just how rigged the process is, as evidenced by a conversation with the Pentagon's then-General Counsel William J. Haynes II (who famously told him that when it came to the proceedings at Guatnanamo, "We can't have acquittals. We've got to have convictions.")

Nevertheless, by the end of the week, the reviving of the military commissions was a foregone conclusion. And by Friday afternoon, it was official.

"Military commissions have a long tradition in the United States," President Obama said in a statement released Friday. "They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered."

Citing flaws in the version created by his predecessors, which has "only succeeded in prosecuting three suspected terrorists in more than seven years," Obama promised that his will "reform the military commission process" to ensure that:

First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.

"This is the best way to protect our country, while upholding our deeply held values," Obama said.

But human rights activists and lawyers -- many of whom endorsed Obama during the presidential primary precisely because of his position on military commissions -- are hardly convinced. "These military commissions are inherently illegitimate, unconstitutional and incapable of delivering outcomes we can trust," Anthony Romero, Executive Director of the ACLU said in a statement on Friday. "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.'"

"In this case, President Obama would do well to remember his own infamous words during his presidential campaign: you can't put lipstick on a pig."

The coming days will see no shortage of "analysis" on Obama's decision to preserve the discredited and abusive military commissions process and as with the torture photos story, it is likely to be cast in hopelessly simplistic partisan terms. The danger in this is that, like torture, the waging of war, and other life and death issues, it completely obscures the radical nature of what has actually occurred. As Glenn Greenwald wrote on Friday, "What makes military commission so pernicious is that they signal that anytime the government wants to imprison people but can't obtain convictions under our normal system of justice, we'll just create a brand new system that diminishes due process just enough to ensure that the government wins."

This sounds a lot like the Bush administration's practice of doing something illegal -- warrantless wiretapping for example -- and, upon being discovered, crafting legislation to legalize it. Of course, on that issue, too, Obama changed course, a long time ago.

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