It's time to crank up the GTMO Show Trial Machine [TM], in this case to reopen the long-lost military commission cases against KSM and four of his friends [for the record, besides Khalid Sheikh Mohammed, the listed defendants include: Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi] down at Guantanamo Bay.
Well, y'all know my feelings on the subject, and you're welcome to check out those of former commissions prosecutor Darrel Vandeveld and former commissions chief prosecutor Morris Davis, as expressed in my linked-to interviews with them. Let me highlight some of Col. Davis's comments:
The Talking Dog: You have stated that the commissions were neither "military" nor "justice." Do you believe that the Obama Administration's later tweaks with the commissions process, applying to those commissions going forward, and to the extent contained in the National Defense Authorization Act of 2011 (recently signed into law remedy) this -- in a non-superficial way?
Morris Davis: [T]he answer is "no": I don't think the "reformed" military commission process is significantly different from the military commissions as I left them in October 2007.
Candidate Obama was adamant about the gross injustice of the military commissions, until, of course, he flip-flopped and embraced military commissions. He needed something face-saving, so enough "changes" were made to give him some political cover to claim things were different.
The Military Commissions Act of 2009 was just a politically motivated veneer slapped onto the old process to give the administration an excuse for embracing what it had condemned. If you look beneath the veneer you see that the most significant change to what had been the last “reformed” incarnation of the commissions is a slight change to the hearsay rule. Under the old rules, hearsay was presumed reliable and the burden was on the opponent of a hearsay statement -- most often the accused -- to show by a preponderance of evidence that the statement was unreliable. The "big change" made in 2009 was that the burden shifted to the proponent of hearsay evidence to show, by a preponderance of evidence, that the hearsay evidence is reliable. This change is, basically, a burden shift from the accused to the prosecution, in most instances, of about 1/100th of one percent. A preponderance of evidence is a 50.001 percent versus 49.999 percent standard. If swapping the hearsay burdens around represents a significant change, then there has been a significant change. I don't think it’s anything more than a little coat of whitewash to give President Obama some political cover.
After a while, given the simultaneous convergence of environmental catastrophe, peak oil, financial implosion/depression, broader issues of overpopulation and possible planetary overshoot (read "mass starvation"), and so much other bad sh*t already on their way for us this 2012, coupled with the fact that we are well on the way to domestic dictatorship as it is, the seemingly minor injustices of Guantanamo... just don't seem quite as central as all that anymore. I should note that, for those who still, against all evidence, actually think "elections matter"... we can note that Mitt Romney once suggested that the problem with Guantanamo was that it wasn't big enough (by half).
And obviously, the alleged perps of 9-11 seem a perfect coda for a citizenry always willing to sacrifice the rights of "the other," never quite figuring out that unless everyone gets benefit of law, then no one really does... heck, even a kangaroo court seems better than the summary execution that al-Awlaki (and his teenage kid) got, right?
The heady days of Shiny New President Obama signing executive orders to close the place and other good stuff once hinted at in his inaugural address on that cold January day (in my case, I saw my college classmate-- we both graduated a year before 1984-- take the oath of office on a large screen set up near Wall Street, just a few feet from where George Washington took the first Presidential oath of office)... are all long behind us.
We have since learned that perfect's the enemy of the good and all... and, of course, that freedom's slavery, war's peace, ignorance's strength, etc.
And I guess that's it. It's an election year again.