Obama’s Cure for Military Commissions May Be Worse Than the Disease

According to news reports, President-elect Obama is going to take major steps to end President Bush’s system of trial via military commissions. It sounds…complicated

Under the plan being crafted inside Obama’s camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.

I understand Obama wants to close Gitmo and try some detainees on U.S. soil.  And I suppose the plan that might be adopted is the “national security court” idea first broached by Professors Jack Goldsmith and Neal Katyal last year. This seems like a pretty good idea, but, then again, the military commissions seemed like a good idea at one point as well.  But any national security court will be tied up in congressional battles over its enactment and litigation challenging its propriety. I can already see the due process and equal protection challenges coming down the road.  

If Obama really wants to move quickly, he should either: 1) send all detainees to U.S. courts for trial; or 2) modify the current military commissions into something close to his ideal “national security court.” He has broad executive powers to alter military commission procedures.  And I am not even raising the political problem of letting Republicans denounce him for months for going soft on terrorists (but that’s his problem, not mine).