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Jury Still Out on the Juryless Military Commissions

Soldiers escort an enemy combatant

The War on Terror suffered a major lexical loss yesterday when the Obama administration tossed the legalistic euphemism, and Bush invention, “enemy combatant” into the dustbin of shameful history.

The Bush administration invented the term in order to circumvent preexisting legal structures that gave the accused an inconvenient array of rights.

Observers debated how significant a departure this move means for the overall program of American extraterritorial law enforcement/prosecution of those who use politically-motivated violence against institutions and individuals.

It did not set anyone free yet, and the resulting institutional framework is still taking shape, so it is hard to tell.

In filings, the kidnap victims previously known as “enemy combatants,” are now “detainees.” And non-citizen detainees have no great experience with the United States.

Some saw the detention camp has half-empty: “What’s important about it is it’s a plan on how they will evaluate Guantánamo detainees and future detainees,” said Eugene R. Fidell, -military law Professor at Yale University. “It sets the bar higher than it had been set in the Bush administration.”

Seeing the camp has half-full, the Center for Constitutional Rights said dropping the term “enemy combatant” was hardly a change.

“They have adopted almost the same standard the Bush administration used to detain people without charge — with one change, the addition of the word `substantially’ before the word ‘supported.’ This is really a case of old wine in new bottles.”

I tend to agree with CCR until we see the actual effects. It will take time for the nature of the change to be fully understood. For instance, what is substantial support. Some may say this post substantially supports Al-Qaeda just for questioning the country’s policies.

The machinery of injustice is a lot faster than its counterpart, especially when it comes to the War on Terror. With the United States, I presume the change won’t be “substantially” — to borrow the government’s new word — different.

With Obama’s intention to close the camps at Guantanamo, and now dropping this term from its paperwork, the fate of the military commissions that Congress established to try Guantánamo detainees for alleged war crimes is still an open question. Obama suspended these travesties of justice shortly after taking office.

The military commission law says that only “alien unlawful enemy combatants” can be tried at the Guantánamo war court. Will the law need to be changed to include detainees? Or does the Obama administration intend their end?

The Obama administration position, according to a Military Commissions spokesman, “very much contemplates the existence of ‘enemy combatants’ and justifies detention at Guantánamo on that basis under the laws of war.”

So, only Muslims apparently violate the laws of war now. It looks like the rule of law won’t do much better even with a law professor as president.

Still, some hail this as the beginning of the unraveling the Bush administration’s kangaroo legal structure.

As CCR warns, it could be old wine in new bottles. I estimate it will be watered down old wine in shiny, new, well-marketed bottles. And the Obama administration will likely move in very slow steps, testing the political winds and legal ramifications each way.

Obama will strike down the most objectionable and glaring faults, but leave the American imperial, politically-grounded, imperial quasi-judiciary in place. It is enough that the American military dominates so many beyond this nation’s borders, why play legal games with the administration of justice — it is a transparent attempt to give the whole stinky enterprise the facade of legality.

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