- The Washington Times - Friday, May 15, 2009

UPDATED:

President Obama on Friday announced his decision to restart the military commission process for a relatively small number of suspected terrorists currently being held in Guantanamo Bay, arguing that reforms he was making to the system would give detainees the due process previously unavailable to them.

“These reforms will begin to restore the commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law,” Mr. Obama said in a statement released by the White House. “This is the best way to protect our country, while upholding our deeply held values.”

Mr. Obama said that the Department of Defense will make several changes to the tribunal process that require only a 60-day congressional review, and that the White House will “work with the Congress on additional reforms” which he did not describe in detail.

These changes include restricting the use of hearsay evidence against detainees, in which evidence is introduced without the defendant having the option to cross-examine the witness.



“The burden will no longer be on the party who objects to hearsay to disprove its reliability,” Mr. Obama said.

Other changes include a ban on evidence obtained through “cruel, inhuman or degrading interrogation methods,” as well as giving detainees the option to fire their military attorneys and pick new ones, allowing detainees to refuse to testify without fear of legal sanction, and giving commission judges authority to establish individual jurisdiction in their courtrooms.

The Obama administration left open the possibility of holding some detainees indefinitely, saying only that they are not ready to announce a decision on that issue. The president will give a major speech on Guantanamo Bay and his detainee policies on Thursday, the White House said.

Nonetheless, Mr. Obama’s decision was roundly criticized by civil liberties groups, such as the American Civil Liberties Union.

“Tweaking the rules of these failed tribunals so that they provide ‘more due process’ is absurd. There is no such thing as ‘due process light,’” said Anthony D. Romero, the ACLU’s executive director.

“Despite the administration’s efforts to improve the system, the only explanation for reviving it would be to accommodate the damage that has already been done by the Bush administration’s policies of torture, illegal detention and denial of fair trials,” Mr. Romero said. “As unfortunate as it is to inherit that legacy, to accommodate those policies is essentially to ratify them.”

Republican leaders, however, applauded Mr. Obama.

“I will review the Presidents proposal to ensure it will not handicap our soldiers in the field, put classified information at risk, or unreasonably prevent bringing these terrorists to justice. But his willingness to return to the bipartisan approach of military commissions for trying detainees now held in Guantanamo Bay is an encouraging development,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.

Sen. John McCain, Arizona Republican, said he had “long stated my belief that military commissions should provide the chief venue for trying war crimes violations by Guantanamo detainees, and I am pleased that President Obama has now adopted this view.”

But Mr. McCain, who Mr. Obama defeated in the 2008 presidential race, called the decision “only a step” toward a comprehensive policy.

“There remain numerous unresolved questions about the future of U.S. detainee policy, including where the Guantanamo inmates will be held and tried, how we will handle those who cannot be tried but are too dangerous to release, and how to deal with the prisoners held at Bagram Air Base in Afghanistan — some of whom were captured off of the Afghan battlefield,” he said.

Senate Judiciary Committee Chairman Patrick Leahy, Vermont Democrat, responded noncommittally but did not reject Mr. Obama’s decision outright.

“I have always said that establishing appropriate military commissions is possible,” Mr. Leahy said. “I look forward to reviewing the Obama administrations proposals for providing a fair system of military commissions.”

Though the White House said it was “premature” to discuss how many detainees would be placed in the commissions trials, Associated Press reported that fewer than 20 of the 241 detainees at Guantanamo will be tried in the tribunal system, which Mr. Obama suspended upon taking office.

A senior White House official disputed Associated Press’ number but would not say whether fewer or greater than that would be placed into the commissions process. But regardless, the trials will not start immediately.

The president is asking Congress for 120 days to legislate changes to the system, the senior official said.

Mr. Obama noted that during his time in the Senate he supported military commissions but opposed the system designed by the Bush administration because “it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time.”

His changes to the system are intended “to permit for greater due process for the accused so we can get what we’ve been looking for and what has been lacking for the last seven years, which is swift and certain justice for those who plotted and carried out attacks against our country,” the senior White House official said, speaking on the condition that he not be identified.

As for indefinite detention, the official said, “we’re just not there yet.”

On the same day in January that he suspended military commissions, the president also ordered that Guantanamo be closed within a year. At the time, his legal team acknowledged a conundrum surrounding detainees who are considered too dangerous to release or incarcerate on U.S. soil, but also who cannot be tried in court because the evidence against them is either classified or was obtained through rough interrogation or other possibly illegal means.

Detainees that are not placed in military commissions or indefinite detentions could be tried in regular criminal court, released, or sent back to their home countries, though there are significant obstacles to the latter two options.

The president’s decision to continue an unpopular Bush-era legal practice comes two days after he decided not to release previously undisclosed pictures of prisoner abuse by U.S. soldiers in Iraq, in a change of heart and mind that he said was motivated by thinking about the effect on members of the military abroad.

It was a decision that angered liberals and far left groups who charged Mr. Obama with hiding information from the public.

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