During the campaign Barack Obama made hay of the Bush administration’s wanton abuse of the rights of terrorist detainees at Guantanamo. Speaking at a town hall meeting in Pennsylvania in June, Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:
“I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.”
The Nuremberg trial, however, was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.
In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ “day in court” occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.
Yesterday Barack Obama announced the return of military commissions to deal with some of the Guantanamo detainees. But they won’t be like the retrograde military commissions of the Bush administration. The’re new and improved, of course. What next, a kinder, gentler waterboarding? Andrew McCarthy is not amused by Obama’s continuing denigration of the Bush administration while resorting to Bush administration policies.
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