WASHINGTON — The first captive at the U.S. Naval Base on Guantanamo Bay to be charged in a military tribunal during the Obama presidency is expected to be one of the prison's most notorious inmates — Abd al-Rahim Al-Nashiri, the alleged mastermind of the 2000 USS Cole bombing that killed 17 sailors.
And his case, beset with allegations of torture and mistreatment, is fraught with complications for the administration, which this week reversed course and announced it will follow the George W. Bush legacy of holding military tribunals inside the Caribbean fortress.
There are 172 prisoners there now, down from 240 when Obama took office in January 2009. Forty percent of them are Yemenis, mostly low-level fighters with slim ties to al-Qaida or the Taliban, and yet a risk if they were returned to a home that has since become rife with new terrorist groups.
Four dozen other men are considered too dangerous to send home but difficult to prosecute because their cases are too flimsy for prosecution in the military system.
So it is Nashiri who poses the first test for the Obama administration in the minefield of military tribunals, in which the Bush administration was dogged with complaints of unconstitutional maneuvering and misguided justice.
But legal experts said Tuesday that legal changes make the process fairer and grant more of a semblance of due process for detainees.Congress in 2009 revised the rules for military commissions, and military prosecutors now cannot introduce "statements obtained by torture or cruel, inhuman or degrading statements." Moreover, a defendant's past statements may be used only if the judge concludes they were "voluntarily given."
Also tightened are standards for "hearsay" testimony from missing witnesses. A military judge now will permit such testimony only if the prosecutor shows it is reliable and relevant.
"The changes made in 2009 were significant and make the commissions much fairer. But they are not as fair" as a civilian trial in federal court, said Mason Clutter, counsel for the Constitution Project, a bipartisan group that wants the prison closed.
Cully Stimson, a former Pentagon lawyer under Bush, said military commissions can fairly decide whether a captive is guilty or innocent, but the verdict may not always be accepted as fair. For one thing, the judge and jurors are still U.S. military officers.
"It is the unanswered question: whether they will be perceived as fair," he said. "Certain folks on the left will never take kindly to the commissions, and they will honestly believe they mete out substandard justice."