Reports circulating in Washington suggest that President Barack Obama may try to revive the military commission system for prosecuting Guantánamo detainees, which Obama himself criticized during the administration of his predecessor, former president George W. Bush.
While some detainees would be tried in federal courts, administration lawyers are reportedly concerned that some terrorism suspects could not be prosecuted in this way because they were subjected to brutal interrogations or because some of the evidence against them is based on hearsay.
So the Obama legal team is said to be developing a plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
While Obama himself has said in the past that he was not ruling out prosecutions in the military commission system, senior officials have made it clear that their preference is to prosecute terrorism suspects in existing U.S. courts.
During the presidential campaign, Obama was critical of the commissions. He said, "By any measure our system of trying detainees has been an enormous failure," and declared that as president he would "reject the Military Commissions Act."
Court challenges and repeated delays have made the military commissions virtually dysfunctional. The result has been that detainees were denied basic rights of U.S. law.
Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.
The administration is likely to make it more difficult for prosecutors to admit hearsay, while not excluding it entirely, government lawyers reportedly said. The hearsay issue is central to many Guantánamo cases because the hearsay is based on secret intelligence reports and detainees may never be allowed to cross-examine the sources of those reports.
Continuing the military commissions in any form has already drawn sharp criticism from human rights advocates, who say that they would curtail the protections defendants would routinely receive in civilian courts.
Jonathan Hafetz, an ACLU attorney, told IPS, "Military commissions to try Guantanamo detainees have been a failed experiment in lawlessness. No effort by a new administration to provide ‘window dressing’ will change that."
"The only reason to perpetuate to military commissions in any form would be to circumvent the protections of the criminal justice system and insulate torture and other abuses from review," he said. "The criminal justice system is fully adequate to prosecute terrorism cases while remaining faithful to the Constitution and American values."
David Cole of Georgetown University, a widely recognized constitutional authority, told IPS, "The critical issue is that any war crimes trials be meticulously fair. I think what they are called matters less than whether they meet fundamental principles of fairness. But one has to wonder why, if they are planning on fair trials, they cannot use the military justice system we use for our own servicemen."
Shane Kadidal, an attorney with the Center for Constitutional Rights, told IPS that the process was fundamentally flawed. "One could read some of Eric Holder’s statements about the commissions [from months ago] as not being categorical rejections of the idea of military trials or even of the present system, but instead implying that layering on extra due process protections would allow the currently temporarily stayed trials to continue," he said.
"But doing so would be a legal mistake because it would not solve the retroactivity problem the fact that the offenses defendants are charged with were created by the Military Commissions Act years after they were arrested," Kadidal said.
He added, "It would also be a policy mistake: trials before any kind of non-civilian court will be viewed by the rest of the world as the sort of thing that military dictatorships have done throughout history; they’ll be assumed to be completely lacking in fairness. Moreover, using military courts to try terrorists plays into their hands. It allows them to portray themselves as warriors rather than criminals, and their victims as collateral casualties in a political struggle rather than murder victims."
Gabor Rona, international legal director of Human Rights First, said, "The administration is making a huge mistake if they believe getting convictions through suspect methods is more valuable than letting justice take its course."
The four-month suspension of military commission proceedings ordered by Obama is due to end May 20.
At a news conference last week, Attorney General Eric Holder emphasized that if the administration did use military commissions, the rules must give detainees "a maximum amount of due process."
But, referring to detainees whom U.S. officials have accused of involvement in major terrorist plots, Holder added, "It may be difficult for some of those high-value detainees to be tried in a normal federal court."
As many as 100 of Guantanamo’s remaining 241 detainees could end up held without trial on U.S. soil, Defense Secretary Robert M. Gates suggested last week. He acknowledged that this situation would create widespread opposition in Congress.
Gates told Congress that discussions had started with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in civilian courts because evidence against them was obtained through torture or is hearsay.
"What do we do with the 50 to 100 probably in that ballpark who we cannot release and cannot try?" Gates asked in a hearing before the Senate Appropriations Committee.
Lawmakers of both political parties have become increasingly vocal in asserting that the administration announced it would close Guantánamo before it had a plan for housing and prosecuting some detainees and releasing others.
"The question of where the terrorists at Guantánamo will be sent is no joking matter," according to Sen. Mitch McConnell of Kentucky, the Republican leader. "The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield."
Critics of the administration’s actions have tended to label all Guantanamo detainees as "terrorists," although many have been cleared for release and there is substantial evidence that other detainees were "sold" to the U.S. military for cash while others were simply "in the wrong place at the wrong time" and should never have been imprisoned in the first place.
(Inter Press Service)