As a candidate, Barack Obama rejected the Bush administration's approach to trying terror suspects in military commissions. As president, he now says military tribunals will be used to try some terror suspects, with some added due process protections. Early on in his administration, he said he would not block the release of photographs of detainee abuse at American military hands. Now Obama is blocking their publication after pressure from the military.
These policy shifts are particularly disappointing coming from a president who clearly understands how damaging Bush's torture policies and kangaroo tribunals were to America's moral authority and international standing. Obama campaigned on a promise of reversing that damage through transparency, accountability and the rule of law. Now he has to make good on those promises, and these are steps backward.
Until now, Obama's follow-through on these sorts of promises has been good. He ordered the closure of Guantanamo and ended official detainee abuse by requiring that all prisoners by treated in accordance with military code. On furthering government transparency, Obama made the Bush administration torture memos public and pushed federal agencies to be more responsive to Freedom of Information Act requests.
But it would be a mistake to embrace the military commissions to try terror suspects, even if new rules give the accused more due process. The system was purposely established by Bush to avoid giving suspects a fair trial, and that taint does not disappear because Obama, to use his own words, is putting lipstick on a pig. For example, a new rule barring testimony obtained through cruel and degrading treatment doesn't summarily exclude all coerced testimony, which is something any legitimate court would demand.
Convictions can be obtained using our tried and true justice systems. The courts have successfully convicted terrorists Jose Padilla, Richard Reid, John Walker Lindh and Zacarias Moussaoui, among others. Some of those prisoners were also abused while in custody. There also is an established military justice system that provides defendants facing court martial with adequate due process, including an appeal to the civilian court system.
But the military commissions are another animal. They severely compromise standards of fairness at trial. The United States cannot stand by its rules only when it has enough admissible evidence to convict a prisoner and abandon them when its case is weak.
Obama's reversed himself and decided to hold back dozens of pictures of detainee abuse at various prisons in Iraq and Afghanistan after hearing from military commanders who worried about a backlash against American troops overseas. But as a federal trial and appellate court have held, these pictures should be published. There is an overriding public interest served by exposing evidence of serious wrongdoing by military personnel.
The pictures demonstrate that the mistreatment of prisoners during the Bush administration went beyond a few bad actors at Iraq's Abu Ghraib prison. They will also inform the ongoing debate about "enhanced interrogation techniques." It is one thing to discuss the abuse of prisoners as an academic concept and another to see a stark image of a person being made to suffer. While the safety of U.S. soldiers is a legitimate concern, the pictures eventually will get out and it would be better to release them while emphasizing the changes that have been made to guard against such abuses from happening again.
Obama campaigned on a promise to make a clean break with Bush administration policies on detainee treatment. That means making public the pictures that show the results of encouraging abuse of prisoners. That also means trying terror suspects under the standards of due process that have defined us as a nation.