- The Washington Times - Friday, January 23, 2009


Military defense attorneys said they were eager for a new chapter as President Barack Obama Thursday ordered the closure of the offshore prison here. But many questions remain about how and where to prosecute terror suspects once it is shut down.

Some involved in America’s attempt to put them on trial say the cases can easily be transferred to federal courts. Others predict cases built on hearsay evidence or confessions obtained through harsh interrogations would collapse or could never be brought to trial.

Military judges already suspended trials at Guantanamo for four months while the Obama administration reviews the system former President George W. Bush set up in response to the Sept. 11 attacks.

In one of his executive orders on Thursday, Obama indicated a preference for moving the cases to traditional U.S. federal courts or military courts-martial, but he also left open the possibility of continuing the current military commissions, perhaps with revisions.

Since Obama wants Guantanamo’s prison emptied of its roughly 245 inmates within a year, any trials would have to be held elsewhere. The military has cases pending against 21 detainees, and had planned to charge dozens more.

Guantanamo’s critics argued the commission system fell short of American justice. Detainees at the U.S. Navy base in southeast Cuba were denied many constitutional protections, such as being advised of their rights before interrogations.

“There isn’t going to be justice for anyone at Guantanamo, for the victims’ families or the accused,” said Navy Lt. Cmdr. Brian Mizer, who defended a man accused of plotting the Sept. 11 attacks.

“I guess it’s our last trip here,” said Stacy Sullivan of New York-based Human Rights Watch as a group of lawyers, journalists and human rights observers waited for a flight out of Guantanamo after pretrial hearings were suspended. “Let’s hope that if we return, this will be a museum memorializing a really shameful chapter in American history.”

But Marine Maj. Jeff Groharing, a prosecutor in the Sept. 11 attacks case, said he hopes the military commissions can resume. “There are victims out there that still need justice to be done. I don’t think it would be fair to them to not see the cases through.”

Legal experts say Obama must decide what to do with three groups of people now held at Guantanamo. Some aren’t considered threats and can be released, under certain terms. Others like admitted al-Qaida members who said they hope to carry out other attacks would be put on trial.

But there’s also a sizable group, potentially dangerous, who cannot be tried because evidence might be lacking or won’t hold up and can’t be transferred to other countries. Obama on Thursday appointed a task force to recommend how to deal with this population.

Scott Silliman, executive director of Duke University’s Center on Law, Ethics and National Security, said he believes courts-martial are better in part because bringing terror suspects into federal courts could pose security risks.

Others say transferring them to federal courts is the only way to redeem the United States in the eyes of the world.

“Federal courts are the jewel and crown of our legal system,” said Eugene Fidell, who teachers military law at Yale Law School.

Still others said cases brought under the relatively untested commission system won’t survive in federal courts or military courts-martial, since much of the evidence won’t be admissible.

There is no single best option, said Anthony Barkow, a criminal law specialist at the New York University School of Law who successfully prosecuted terrorist sympathizers as an assistant U.S. attorney in Manhattan. All the Obama administration can do is evaluate detainees case-by-case, he said.

Associated Press writer Mike Melia reported from San Juan, Puerto Rico.

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