TRUTH, JUSTICE AND THE AMERICAN WAY:

Obama sways to the politics of war (Jack Goldsmith, March 9 2010, Financial Times)

What will it be, Mr President? So asked the full-page advertisement by the American Civil Liberties Union in Sunday’s New York Times. The ACLU was responding to reports that Barack Obama might reverse the decision by Eric Holder, US attorney-general, to try Khalid Sheikh Mohammed and his alleged September 11 co-conspirators in a civilian court and send them instead to a military commission. Beneath panel images of Mr Obama morphing into President George W. Bush, the ACLU noted Mr Obama’s campaign pledge to change Bush-era terrorism policies, and urged him to “remind the world that America stands for due process, justice and the rule of law”.

The problem for the ACLU is that America’s conception of due process, justice and the rule of law includes military commissions. Commissions are politically damaged and still raise legal questions. But their pedigree reaches back more than 200 years and they have the support of every branch of US government. The Supreme Court invalidated Mr Bush’s commissions in 2006 on technical grounds but affirmed their validity in theory. That same year, Congress reinstated commissions after addressing the Court’s concerns. It made further revisions in 2009. The Obama administration embraced commissions last year and plans to use them for lower-level alleged terrorists.

American law also permits military detention without trial against members of the Taliban, al-Qaeda and its affiliates until the end of the country’s conflicts with these groups. As with commissions, Congress has approved military detention; courts have upheld it; and the administration has embraced it and plans to use it for several dozen alleged terrorists.