Andy McCarthy executes a full takedown of Sen. Durbin’s attempts on Meet the Press yesterday to distinguish President Obama’s approach to military commissions from that of President Bush. Durbin began by claiming that under Obama “we’re not going to have hearsay that has to be rebutted by a defendant.” McCarthy responds:
The change regarding hearsay is cosmetic — and really less than cosmetic to anyone who has ever actually prosecuted cases. Hearsay will still be a prominent feature in the Obama commissions. All that will happen is that the burden of proof will be on the prosecutor to show the reliability of the hearsay rather than on the war crimes defendant to show its unreliability. As a practical matter, however, the judge has always had the authority under the Bush rules to exclude any evidence the judge decided was unreliable — and in a criminal trial, judges always put the prosecution through its paces regardless of which party technically bears the burden of persuasion.
Next Durbin stated that “we’re going to allow for the right of counsel.” McCarthy responds:
Durbin’s “right of counsel” claim is a joke — and one you’d think Democrats would be too embarrassed to keep repeating given the number of Obama administration lawyers who, along with their former firms, spent the last eight years volunteering their services to America’s enemies. Under the Bush commission system, the terrorists already had U.S. taxpayer-funded military lawyers and were, in addition, permitted to retain private counsel — and there was no shortage of American private lawyers (such as several at Attorney General Eric Holder’s firm) who have taken up these cases. If there’s anything these terrorists have gotten plenty of, it’s top-flight legal representation.
Having thus struck out on specific differences between Bush’s commissions and the one Obama contemplates, Durbin resorted to what he and his fellow left-wing Dems do best — attacking Bush on phony grounds:
Just consider this, in seven years in Guantanamo there were exactly three who were convicted by military commissions, and those were thrown out by the Supreme Court. The — President Obama has learned from that lesson of history. He’s going to make sure that any military commission, military tribunal in the future is one that can be sustained by the courts.
But McCarthy points out that “the Supreme Court has never reviewed, much less reversed, any of the three convictions obtained by the Bush military commission system.” In other words, Durbin is just making it up.
Moreover, McCarthy reminds us that a major reason why there have not more convictions by military commissions is the delay caused by the legion of volunteer American defense attorneys who ground the system to a halt by various court challenges.” Another reason is the fact that Obama himself stopped the pending commissions against 21 terrorists (trial was imminent in several cases) so he could first “study” them and, now, propose these illusory “changes.
Sen. Durbin is not known for being constrained by facts. However, the liberties he has been forced to take on this issue demonstrate the utter lack of merit in his underlying position that Obama’s commissions are legitimate where Bush’s weren’t.