White House sources tell ABC News that President Obama will reinstate military commission trials for detainees, with more rights for defendants than the previous administration’s commissions afforded.
Another option for the prosecution of detainees will be trials in the US justice system under Common Article 3 of the Geneva Conventions, as seen with the case of Ali Saleh Kahlah al-Marri, who on April 30 pleaded guilty to one count of conspiracy to provide material support or resources to a foreign terrorist organization.
The administration will formally announce the plan for prosecutions Friday. Other detainees could be placed in the custody of other countries.
The Obama administration will seek series of administrative changes tomorrow, which are subject to 60 days of congressional review The White House will also seek additional reforms through Congress — though what those will be are not entirely clear yet. A Detention Policy Task Force – co-chaired by Defense Secretary Robert Gates and Attorney General Eric Holder – was set up by executive order in January 2009 to review policy options on detention for future, and that task force will work on details, consulting with Congress.
As a senator, Mr. Obama supported military commissions, though he voted against the version pushed by the Bush administration, which ultimately passed the Senate and was found unconstitutional by the Supreme Court.
In 2006, then-Sen. Obama voted for a military tribunal bill originally drafted by former Sen. John Warner, R-Virginia, and GOP Sens. John McCain of Arizona and Lindsey Graham of South Carolina.
That bill had passed out of the Senate Armed Services Committee but was changed significantly in negotiations with the Bush White House and GOP-led Congress.
Sen. Carl Levin, D-Mich., offered the original Warner/McCain/Graham bill as a substitute to the bill being supported by President Bush and the Senate Majority Leader. Levin’s effort, supported by Obama, failed.
A White House source says the original bill drafted by Sens. Warner, McCain, and Graham will be "a good starting point for the congressional effort."
The greater protections afforded detainees in the Obama administration’s military tribunals will include banning evidence obtained through "cruel, inhuman, or degrading" interrogation techniques; adding additional restrictions on the admissibility of hearsay evidence; allowing defendants greater leeway in choosing military counsel; protecting detainees from "adverse inference" if they do not testify at trial; and eliminating the effect of the combatant status review tribunal for purposes of jurisdiction under the Military Commissions Act.
On September 28, 2006, then-Sen. Obama expressed support for military commissions in general — not to mention the version of the bill he supported, originally written by Warner, McCain, and Graham, and offered by Levin — and discussed why he was voting against the United States Military Commissions Act of 2006, supported by President Bush.
"The problem with this bill is not that it’s too tough on terrorists," he said in 2006. "The problem with this bill is that it’s sloppy. And the reason it’s sloppy is because we rushed it to serve political purposes instead of taking the time to do the job right."
Then-Sen. Obama said military courts should make decisions on these detainees.
"The problem is that the structure of the military proceedings has been poorly thought through," he said. "Indeed, the regulations that are supposed to be governing administrative hearings for these detainees, which should have been issued months ago, still haven’t been issued. Instead, we have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court. This is not how a serious Administration would approach the problem of terrorism."
Just hours after he took the oath of office, President Obama ordered Secretary Gates to direct the chief prosecutor of the Office of Military Commissions to seek a continuance of 120 days for any case that has been referred to the office of military commissions and to cease referring any new cases for prosecution.
He had told ABC News’ George Stephanopoulos on January 11 that "part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication."
The then-president-elect said "some of the evidence against them may be tainted even though it’s true. And so how to balance creating a process that adheres to rule of law, habeas corpus, basic principles of Anglo American legal system, by doing it in a way that doesn’t result in releasing people who are intent on blowing us up. …we are going to make sure that the procedures we set up are ones that abide by our constitution."