June 06, 2009

An Outrage If Bush Had Proposed It

The NY Times covers a trial balloon that would provoke outrage from the left if Bush-Cheney had proposed it. However, as the Times tells it, the proposal has no sponsorship at all - apparently it just fell from the sky, or something. Here we go:

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy. People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

Ordinarily I have no qualms about capital punishment but in this case, sending some jihadists off to collect their virgins, or raisins, or whatever without what the world would view as a fair trial can only lead a public relations debacle of the sort I would expect the kinder, humbler (yet God-like!) Obama to avoid.

Apparently this procedure is acceptable in conventional trials but not in the military courts:

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions. The law did not make clear if guilty pleas would be permitted in capital cases. Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

During a December tribunal proceeding in Guantánamo, the five detainees charged with coordinating the Sept. 11 attacks said they wanted to plead guilty. Military prosecutors argued that they should be permitted to do so. Defense lawyers argued that tribunals should follow American military law and bar the guilty pleas. The military judge has not yet made a decision.

And Obama's position? Who knows?!? The Times is utterly mystified:

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees’ rights. It is not known whether the White House has approved the proposed death penalty provision. A White House spokesman declined to comment.

Sure, someone on the administration task force just snuck in that provision without anyone at the White House knowing or caring.

I can see the benefits to the Administration of this trial balloon - lefties will howl and Obama can disavow the idea, reassuring us with something to the effect of 'that was not the task force I knew'.

And when this plan is scrapped it will be just as well.

Posted by Tom Maguire on June 06, 2009 | Permalink