15 May I Can’t Wait to See Neal Katyal’s Argument In Defense of Military Commissions
It’s official: President Obama is going to revive the use of military commissions to try war on terror suspects currently held in Guantanamo Bay. Funny how he always announces these sorts of climb-downs on Fridays.
The ACLU has vowed to litigate this, no matter what, so there will be at least one argument somewhere. If that’s the case, it would be really cool if the OLC memo on the legality of the new military commissions was drafted by blogger extraordinaire Marty Lederman (whose appointment was hailed as a strong signal that things were really going to change), and (even better), that Deputy Solicitor General Neal Katyal ends up defending the new commissions in court! If that happens, I really hope someone reminds Neal of his 2007 Slate article:
[Military commission] trials are not “equal justice”: For the first time since equality was written into our Constitution, America has created one criminal trial for “us” and one for “them.” The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death….
Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.