Obama's revised terror court wins applause, scorn

McClatchy NewspapersMay 15, 2009 

WASHINGTON — President Barack Obama said Friday that he'll restart military commissions to try suspected terrorists — some of them perhaps in Guantanamo Bay, Cuba — but only after granting the suspects additional legal rights.

"These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law," Obama said in a statement.

"In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in (U.S. District) courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values."

He said he'd institute several changes, including:

  • Barring as evidence any statements produced during "cruel, inhuman and degrading interrogation" methods
  • Limiting hearsay evidence
  • Giving suspects greater power to choose their own defense attorneys
  • Allowing military commission judges to establish the jurisdictions of their own courts

Neither he nor his aides would answer questions about how the new tribunals might work, including whether suspects who're acquitted would be released, tried in other courts or declared enemy combatants and held indefinitely anyway. It's also unclear whether defendants convicted by military tribunals could appeal to the U.S. Supreme Court.

Liberals called Obama's decision a betrayal of a fundamental campaign promise to transfer terrorism cases to federal courts.

"President Obama is reinstating the same deeply flawed military commissions that in June 2008 he called an 'enormous failure,'" said Larry Cox, the executive director of Amnesty International. "In one swift move, Obama both backtracks on a major campaign promise to change the way the United States fights terrorism and undermines the nation's core respect for the rule of law by sacrificing due process for political expediency."

Kenneth Roth, the executive director of Human Rights Watch, said the military commissions would still offer less justice than U.S. civilian courts would, even with Obama's changes.

A key problem, he said, is that the commissions would remain part of the military and thus the executive branch, lacking the independence of civilian courts.

"There is no good reason why the Guantanamo cases shouldn't be tried in federal court," Roth said. "In the more than seven years since the military commissions were announced, only three suspects have been prosecuted. The federal courts, by contrast, have tried more than 145 terrorism cases during the same period."

Many in Congress of both political parties voiced support for Obama's proposal.

"The president's decision to reform the rules for military commissions was essential in order to address the serious deficiencies in existing procedures," said Sen. Carl Levin, D-Mich, chairman of the Senate Armed Services Committee.

The Supreme Court ruled in 2006 that the Geneva Conventions prohibit trying detainees for violating the rules of war unless the trial is held in a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

South Carolina Sen. Lindsey Graham, a Republican who helped craft the 2006 Military Commissions Act, said a new military commissions system would let "the world know that this is not an arbitrary exercise of executive authority."

"We're not going to have people put in jail forever because Dick Cheney says so," Graham told McClatchy. "We've got a chance to start over and . . . create a hybrid system that will use the military legal system as well as the civilian legal system to make sure that every detainee has robust due process, but every case will be viewed from a national security perspective."

Detainees now in Guantanamo could be sent to the Naval Brig in Charleston, S.C., when the facility in Cuba is closed under Obama's order. They also could be sent to the Army prison at Fort Leavenworth, Kan., or to the maximum-security federal prison in Florence, Colo. Members of Congress, including Graham, and others already are up in arms over the possibility that terror suspects or convicts could end up in their backyards.

Obama said that his administration Friday asked the military commissions to suspend their nine pending cases for another 120 days while he and Congress flesh out the new rules.

Supporters of a new military commissions system estimate that as many as 60 current Guantanamo detainees can't be tried in federal court in part because of the quality of the evidence against them. Currently, there are about 240 prisoners in Cuba.

The confessions of these defendants would be inadmissible in a criminal court because none of them were read their Miranda rights or had lawyers present when they were questioned, in some cases on the battlefield in Afghanistan or Iraq.

Government prosecutors also would face problems presenting evidence from hostile witnesses in federal courts and would have trouble fighting detainees' requests for evidence, possibly jeopardizing national security.

A revised system, however, would remain open to future legal attacks.

"If the administration's goal is quick convictions at any cost, I don't think that this new legal system is going to get them there," said Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project. "This new system will get bogged down right at the beginning with litigation over its legitimacy. And that's a lesson that the Obama administration should have learned from the experience of the Bush administration."

(James Rosen contributed to this article.)

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McClatchy Newspapers 2009

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