Guantanamo Lawyers: Obama Gets Away With Legal Moves Bush Wouldn’t Have

April 17, 2012 1:31 am

More than two years after President Barack Obama blew his self-imposed deadline to shut down the extrajudicial prison at Guantanamo Bay, close observers and defense lawyers with clients making their way through the reformed military tribunal system say the public isn’t paying attention.

“I think what you’ll find is the interest in the process will never get back up again,” Bryan Broyles, the Pentagon’s deputy chief defense counsel at Guantanamo, told TPM. “It’s fatigue and the thought that ‘Well, it must be okay now because Obama said it’s okay.'”

Broyles and other observers believe that some policy changes instituted under the Obama administration would have sparked outrage if President George W. Bush was still in the White House. One change he said should have been “extremely alarming” to the legal community: the rule allowing death penalty defendants to plead guilty and still receive the death penalty.“This is the only court in the United States where you can plead guilty and still be given the death penalty, and it’s just another sign that the system is not set up to give anyone a trial it’s set up to give someone what appears to be a fair trial with a predetermined result,” Broyles said.*

“It’s pretty clear to me that the public has lost interest in these issues,” Richard Kammen, a death penalty expert representing accused USS Cole attack plotter Abd al-Rahim al-Nashiri, told TPM. “There’s certainly a lot more interest in Trayvon Martin, for example, than there is in any of the military commissions, with the exception being the arraignment for the 9/11 people. But the day-to-day stuff, which is really quite important, has drifted off peoples’ consciences.”

Kammen called the reforms instituted by the Obama administration in 2009 “quite superficial” and said there are “huge, huge problems” in the military commissions system.

“There is nothing about this system that the average American, if they were caught up in it, would see as being fair,” Kammen said. “The Republicans have an interest in keeping this process going and the Democrats have an interest, to a certain extent, in not embarrassing Obama.”

Melina Milazzo, advocacy counsel for Human Rights First’s Law & Security Program, said there “definitely were some improvements” made with the 2009 version of the military commissions instituted under the Obama administration but said other parts of the system weren’t getting the attention they should.

“I think the problem is that the military commissions system itself is a fundamentally flawed system, and so even if there have been some remedies — some of the more egregious violations of due process — there still are so many more problems that exist in the military system,” Milazzo said.

Broyles said he’s seen coverage of Guantanamo Bay shift over time from focusing on every development in the process to only the big cases like the trial of Khalid Sheikh Mohammed and others accused of plotting the Sept. 11 attacks.

“It became much less about military commissions or interest in that, it was only because the 9/11 cases were a spectacle,” Broyles said. “Nobody had any interest in the process or the procedure or whether it was a fair trial or anything like that, it was only an interest in the fact that these five guys were coming in and essentially making a circus of the whole thing, and doing it very effectively. So it was entertaining, but it had very little to do with any interest in the process.”

Brigadier General Mark Martins, the chief prosecutor of the Pentagon’s Office of U.S. Military Commissions, responded to critics of the system during a press conference after pre-trial motions in the case al-Nashiri.

“Contrary to the dark suggestions of some whose minds appear already made up to oppose military commissions regardless of how they are conducted, these protections are implemented by officers whom, I submit, are worthy of the public trust,” Martins said.

Late update: Broyles emailed TPM to clarify his statement:

It is NOT correct that there are no US courts that permit a plea to a death penalty offense, and I should not have stated it that baldly.

The change under the administration of President Obama substantially reduced the protection of the detainee. Military courts-martial, upon which military commissions are based, have an absolute bar to such pleas. Military Commissions are supposed to deviate from courts-martial practice only where necessary, and such a bar existed until changes made in 2009, without any such necessity being shown. In fact, it is a striking example, the most important one, really, of the blending of the Federal and Courts-Martial systems That blend almost always is used to reduce substantive protections due a criminal accused. In Federal court, while a guilty plea is allowed to a death eligible offense, it cannot be used to seek martyrdom, or “suicide by court.” Under federal law, the jury *must* consider mitigating circumstances and weigh the aggravating facts against those circumstances before it is permitted to sentence a defendant to death. The change here is clearly intended to defeat that protection.

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