If elected president, Hillary Clinton would ask the Justice Department to determine if alleged 9/11 plotters currently held at Guantanamo Bay, Cuba, could be tried in civilian courts or regular military courts rather than face military commissions that have sparked controversy both inside and outside the United States, her campaign says.
Clinton's response to questions about charges filed last week against six Guantanamo prisoners was the most far reaching of the three leading presidential candidates.
Her opponent for the Democratic nomination, Sen. Barack Obama, D-Ill., said that the so-called "high-value detainees'' at Guantanamo should be tried in federal or traditional military courts, but did not say what actions he would take to move the trials.
Republican Sen. John McCain, the likely Republican nominee, said he plans to continue the military commissions even if the detention center in Cuba is closed, as he has advocated.
The Pentagon disclosed last week that it planned to seek the death penalty against six alleged al Qaeda co-conspirators held at Guantanamo Bay on charges that they conspired in the Sept. 11, 2001 terror attacks that killed nearly 3,000 people in New York, Washington and Pennsylvania.
Those trials, however, are unlikely to begin before the end of the Bush administration — meaning it will be left to the next president to determine how those cases will be handled.
"As president, she would direct the Justice Department to evaluate the evidence amassed against these prisoners and make a determination," said Lee Feinstein, the Clinton campaign's national security director.
Feinstein said that Clinton would ask her Justice Department to consider two possible alternatives to the military commissions: Indictments in federal courts, as some al Qaeda captives have been, or trial by regular courts martial in the military system.
Obama was less specific though he, too, questioned the military commissions.
"As a candidate to be the next commander-in-chief ... I think it's important to be careful about commenting on specific cases pending before the tribunals at Guantanamo Bay," Obama said in a statement.
But he said the "trials are too important to be held in a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges.
"As I have said in the past, I believe that our civilian courts or our traditional system of military courts martial are best able to meet this challenge and demonstrate our commitment to the rule of law."
Critics say the commissions, which were formally created by Congress after the Supreme Court ruled that the administration's previous efforts to set them up were unconstitutional, fail to protect defendants' legal rights and would open the United States to widespread criticism, particularly if the commissions result in death sentences. They argue that traditional military or civilian courts could handle the cases without raising such concerns.
They point to the prosecution of former enemy combatant Jose Padilla in a federal court in Miami, where a jury on Aug. 16 convicted him of conspiring to provide material support for al Qaeda.
Federal prosecutors crafted a case that excluded evidence involving military interrogations of Padilla while he was held in a U.S. Navy brig in South Carolina for more than three years. Instead, prosecutors relied on FBI-collected evidence to win the conviction, which got him a 17-year prison sentence.
In contrast to Clinton and Obama, McCain said he would stick with the military commission trials — though even a McCain presidency would also change the way the U.S. handles suspected al Qaida fighters.
McCain has proposed moving Guantanamo detainees to the military's maximum-security lock-up at Fort Leavenworth, where some legal experts argue the foreigners would be able to invoke more Constitutional rights because they are on U.S. soil.
"There is nothing that says if they are in Guantanamo or Lejeune or Fort Leavenworth that the process doesn't take place," said Randy Scheunemann, who handles foreign policy and national security for the Arizona senator's campaign.
''The last thing Senator McCain wants to see is Khalid Sheik Mohammed getting all the legal protections of someone who is arrested for a traffic violation or a criminal violation in the United States," he said, referring to the Guantanamo captive considered the mastermind of the Sept. 11 attacks.
McCain voted for the Military Commissions Act, which passed the Senate 65-34. Both Obama and Clinton voted against it.
All three have said the United States needs to close the detention center at the U.S. Naval station in southeast Cuba because it hurts America's international standing. But none has offered a specific formula on what to do with the 275 detainees currently at the base whom the Pentagon has decided to release, but whose home countries have yet to agree to take them.
The Pentagon has said it expects to try about 80 by military commissions, including 15 "high-value detainees'' who were held for years secretly by the CIA as suspected key al Qaeda insiders.
"While the policies at Guantanamo have hurt America's image, this is more than just an image problem," said Feinstein, Clinton's adviser.
"Senator Clinton believes those who have committed crimes against the United States should be brought to justice. And that justice is long overdue. Proper military commissions are established to expedite battlefield justice, but the deeply flawed military commissions set up by the Bush administration and blessed by the Republican congress in 2006 have only delayed the administration of justice in these cases."
(Rosenberg reports for The Miami Herald.)