[R-G] U.S. May Revive Guantánamo Military Courts

[Anthony Fenton]

http://www.nytimes.com/2009/05/02/us/politics/02gitmo.html?_r=1

May 2, 2009
U.S. May Revive Guantánamo Military Courts
By WILLIAM GLABERSON

The Obama administration is moving toward reviving the military  
commission system for prosecuting Guantánamo detainees, which was a  
target of critics during the Bush administration, including Mr. Obama  
himself.

Officials said the first public moves could come as soon as next week,  
perhaps in filings to military judges at the United States naval base  
at Guantánamo Bay, Cuba, outlining an administration plan to amend the  
Bush administration’s system to provide more legal protections for  
terrorism suspects.

Continuing the military commissions in any form would probably prompt  
sharp criticism from human rights groups as well as some of Mr.  
Obama’s political allies because the troubled system became an emblem  
of the effort to use Guantánamo to avoid the American legal system.

Officials who work on the Guantánamo issue say administration lawyers  
have become concerned that they would face significant obstacles to  
trying some terrorism suspects in federal courts. Judges might make it  
difficult to prosecute detainees who were subjected to brutal  
treatment or for prosecutors to use hearsay evidence gathered by  
intelligence agencies.

Obama administration officials — and Mr. Obama himself — have said in  
the past that they were not ruling out prosecutions in the military  
commission system. But senior officials have emphasized that they  
prefer to prosecute terrorism suspects in existing American courts.  
When President Obama suspended Guantánamo cases after his inauguration  
on Jan. 20, many participants said the military commission system  
appeared dead.

But in recent days a variety of officials involved in the  
deliberations say that after administration lawyers examined many of  
the cases, the mood shifted toward using military commissions to  
prosecute some detainees, perhaps including those charged with  
coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions  
don’t look as bad as they did on Jan. 20.”

Several officials insisted on anonymity because the administration has  
directed that no one publicly discuss the deliberations.

Administration officials said Friday that some detainees would be  
prosecuted in federal courts and noted that Mr. Obama had always left  
open the possibility of using military commissions.

Still, during the presidential campaign Mr. Obama criticized the  
commissions, saying that “by any measure our system of trying  
detainees has been an enormous failure,” and declaring that as  
president he would “reject the Military Commissions Act.”

The military commissions, which were established specifically for  
trying Guantánamo detainees, have been subject to repeated delays and  
court challenges that argued that detainees were being denied basic  
rights of American law. Only two trials have been completed in the  
nearly eight years since the Bush administration announced that it  
would use military tribunals.

Any plan to adjust the military commissions would walk a tightrope of  
granting the suspects more rights yet stopping short of affording them  
the rights available to defendants in American courts. Several lawyers  
say the commissions are only beneficial for the government if they  
make it easier to win a prosecution than it would be in federal court.

The Bush administration’s commission system was criticized in part  
because it permitted evidence that would often be barred in federal  
court, like evidence obtained through coercive interrogations and  
hearsay.

The administration is likely to make it more difficult for prosecutors  
to admit hearsay, while not excluding it entirely, the lawyers said.  
The hearsay issue is central to many Guantánamo cases because they are  
based on intelligence reports and detainees may never be permitted to  
cross-examine the sources of those reports.

Human rights groups said Friday that using any form of military  
commission would be seen as permitting shortcuts that would not be  
available in existing American courts.

Anthony D. Romero, the executive director of the American Civil  
Liberties Union, said that Mr. Obama had pledged to return the country  
to the rule of law and that “continuing with the military commission  
system would be a retreat from that promise.”

Gabor Rona, the international legal director of Human Rights First,  
said military commissions would only be necessary if the  
administration wanted to assure convictions that might not otherwise  
be certain.

“The administration is making a huge mistake,” Mr. Rona said, “if they  
believe getting convictions through suspect methods is more valuable  
than letting justice take its course.”

It is not clear how many of the remaining 241 detainees are likely to  
be prosecuted. The four-month suspension of military commission  
proceedings Mr. Obama ordered is to end May 20. As a result,  
administration officials are considering whether to ask military  
judges at Guantánamo for an additional delay. In making such a  
request, administration lawyers might outline their proposed changes.

In recent days, senior administration officials have hinted publicly  
that commissions were far from dead, yet offered no specifics and  
their comments drew little attention. In Congressional testimony on  
Thursday, Defense Secretary Robert M. Gates said, “The commissions are  
still very much on the table.”

In a news conference this week, Attorney General Eric H. Holder Jr.  
emphasized that if the administration did use military commissions,  
the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of  
involvement in major terrorist plots, Mr. Holder added, “It may be  
difficult for some of those high-value detainees to be tried in a  
normal federal court.”