Obama Lawyers: Military Commissions Tweaked?

By William Fisher

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 American 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 American 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 us, “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. 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 us, “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.”

An even harsher view came from Prof. Francis A. Boyle of the University of Chicago law school. He told us, “These Kangaroo Courts violate the Geneva Conventions and are thus a war crime, even as determined by the United States Supreme Court itself in the Hamdan decision. There is no way they can be reformed.”

He added that the Geneva Conventions “require the use of regular, organized courts, which in this case would mean prosecution in United States Federal District Courts or else prosecution by means of formal U.S. military court-martial proceedings with all the protections of the Uniform Code of Military Justice. To do otherwise is a war crime.”

Shane Kadidal, an attorney with the Center for Constitutional Rights, told us, “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. 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.”

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 H. Holder Jr. 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 American 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 American soil, Defense Secretary Robert M. Gates suggested last week. He acknowledged that this situation would create widespread opposition in Congress.

Defense Secretary Robert Gates told Congress last week 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 Senator 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.

Meanwhile, the Obama administration is still trying to decide what to do with detainees who have been cleared for release.

At the hearing, Gates said he had asked for $50 million in supplemental financing in case a facility needed to be built quickly for the detainees. He acknowledged that such a facility would be unpopular in most places.

Members of Congress were already playing the NIMBY (Not in My Backyard) game, pleading with Gates not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”

In Berlin last week, Attorney General Eric H. Holder Jr. said the legal basis for holding any detainees was still under review.

“We have to determine what would be our basis for holding that person that would to the world appear to be fair and that would in fact be fair,” he said. “How could you ensure that due process was being served by the detention of such a person?”

Emi Maclean, an attorney with the Center for Constitutional Rights – which has mobilized dozens of lawyers to defend Guantanamo detainees – said, “It is long past time for the prison to close and for these men to have their lives restored. The time for promises is over; the time for real action is now.”

She raised the possibility that some of the detainees would need to be freed to enter the U.S. “The U.S. must open its doors to some of these men who need safe haven from torture, and other countries must as well if Guantanamo is to close,” she said.

Most prominent among this group are 17 Uighurs from China. While these Muslim men have been cleared for release after years of imprisonment at Guantanamo, they remain there because no other countries have come forth to offer them asylum and a U.S. court has ruled that it does not have jurisdiction to release them into the U.S.