-Submitted by David Drumm (Nal), Guest Blogger
John O. Brennan is Deputy National Security Advisor for Homeland Security and Counterterrorism, and Assistant to the President. In remarks made at the Brennan Center for Justice, NYU School of Law, Brennan presented a forceful public call for the closure of the Guantanamo Bay Detention Center and the use of the federal courts to try some of the detainees there. Key word: some.
Brennan said “Terrorists arrested inside the United States will, as always, be processed exclusively through our criminal justice system.” Note he’s not talking about terrorists captured outside the United States.
Nowhere in his speech is there a reference to the writ of habeas corpus. In Boumediene v. Bush, often ignored, the Supreme Court upheld the constitutional right of Guantanamo detainees to habeas corpus. Instead of addressing Boumediene v. Bush, Brennan reiterates Obama’s position:
Our legal authority to use military commissions to prosecute terrorism suspects is not limited to Guantanamo, and we will not limit it to Guantanamo as a policy matter. We will reserve the right, where appropriate, to prosecute individuals we capture in the future in reformed military commissions.
How can military commissions, within the Executive branch, provide an adequate and effective substitute for the habeas writ? The writ must provide access to the Judiciary in order to preserve the principle of separation-of-powers that is the hallmark of the framer’s vision of our government.
Brennan goes on to say:
Our federal courts are unrivaled when it comes to incapacitating dangerous terrorists.
If that is true, there should be no need for military commissions.
Then Brennan gets to the real reason for the military commissions:
In some cases, there are advantages to military commissions. There is greater flexibility to admit hearsay evidence. Confessions can be introduced in military commissions even if Miranda warnings were not issued, but they have to be reliable and, except in limited circumstances, voluntary.
Brennan claims that confessions obtained via torture are admissible. According to Glenn Greenwald, this is not true: “The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do”. The latest copy of the Manual for Military Commissions, page III-7:
No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment … whether or not under color of law, shall be admissible in a trial by military commission.
When discussing Miranda warnings, Brennan says:
Where our laws provide additional flexibility, we must empower our counterterrorism professionals to leverage it.
The purpose of the Constitution is to restrict the Executive Branch’s “flexibility.”
H/T: Jonathan Hafetz, Dafna Linzer.