Washington, DC (May 15, 2009) – Numerous press reports indicate that President Obama is prepared to revive the unconstitutional Bush-era military commissions for detainees at Guantanamo Bay, Cuba, many of whom were subject to so-called “enhanced interrogation techniques” and prolonged secret CIA detention. This course of action is simply unacceptable. An announcement providing details of the President’s plan is expected to be made today.
President Obama’s commitment, just two days after his inauguration, to close Guantanamo and end the military commissions was remarkable for its swiftness and seeming clarity. But the orders left much unclear or unspoken. Under the new proposal, the commissions would resume with minor modifications. According to press reports, statements obtained under “cruel, inhuman, or degrading treatment” would be inadmissible and hearsay evidence would be allowed unless the military judge finds it unreliable. NACDL President John Wesley Hall said, “The President is in peril of squandering the good will engendered by his earlier commitments. To retreat from those promises is to surrender to the same irrational fear that brought disrepute upon the prior administration.”
Although these changes may be a modest improvement from President Bush’s commissions, they fall far short of American principles of fairness and due process. It has been, and remains, the position of the NACDL, since prior to the election of President Obama, that the Military Commissions Act of 2006 should be repealed and that the United States “charge and prosecute any individual accused of involvement with terrorist activity in the federal criminal justice system, and for those individuals accused of violating the Laws of War as unprivileged belligerents, to charge and prosecute them under the Uniform Code of Military Justice, consistent with the Geneva Conventions.”
“President Obama cannot fix this failed system with a fresh coat of paint,” said Michael Price, NACDL’s National Security Coordinator. “There is simply no constitutional alternative but to ensure that each and every detainee, many of whom we now know to have been tortured, receive the minimum protections guaranteed by the U.S. Constitution and the Uniform Code of Military Justice.” “NACDL will be vigilant in its efforts to ensure that those requirements are met,” he added.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.