Obama Wants to Reinstate Military Commissions for Some Guantanamo Bay Detainees

Administration seeks changes from Congress to give defendants more rights.

May 15, 2009, 1:25 PM

May 15, 2009— -- President Obama announced that he will seek to reinstate military commissions for Guantanamo detainees, but with changes to give defendants more rights than in previous military tribunals established under President George W. Bush.

"Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings," Obama said in a written statement. "We will seek more time to allow us time to reform the military commission process."

The expanded rights for detainees at Guantanamo Bay would include banning evidence obtained through "cruel, inhuman or degrading techniques," adding restrictions on the admission of hearsay evidence, allowing defendants greater choice in choosing military counsel, greater protection for the accused who refuse to testify and allowing military commission judges to establish the jurisdiction of their own courts.

There are more than some 200 prisoners in Guantanamo Bay's detainee center, which the president wants closed within a year.

Other detainees not tried under military tribunals will be moved into the U.S. court system and the administration has yet to make a decision on those held in indefinite detention.

"I think there are many different avenues by which this administration will use to seek the justice that is deserved," White House Press Secretary Robert Gibbs said today.

"Military commissions have a long tradition in the United States," Obama said in a paper statement. "In the past, I have supported the use of military commissions as one avenue to try detainees. ... In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush administration and passed by Congress 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."

Defense Secretary Robert Gates will send the changes to Congress. He is required by the Military Commissions Act to give Congress a 60-day notice before the changes are implemented.

A White House source says that Monday, White House counsel Greg Craig met with Sen. Carl Levin, D-Mich., the chairman of the Senate Armed Services Committee, to consult with him about the military commission decision. On Tuesday, Craig consulted with Sen. John McCain, R-Ariz., the ranking Republican on the committee, and Sen. Lindsey Graham, R-S.C.

Outrage Over Military Commissions Decision

Obama's position on reinstating military tribunals was lauded by some Republicans in Congress, but human rights groups -- some of whom are already outraged at the president's decision to fight the release of detainee abuse photos -- are complaining that the administration's move resonates of Bush's era and offers more of the same.

The American Civil Liberties Union (ACLU) sent out an angry statement Friday, calling the decision a "striking blow to due process and the rule of law."

"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,'" the statement said. "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. ... In this case, President Obama would do well to remember his own infamous words during his presidential campaign: you can't put lipstick on a pig."

The White House today tried to separate its policies from those of its predecessor.

"I don't think this is a system that works in any way, shape or form for the American people," Gibbs said, referring to military commissions supported by the Bush administration. "This notion that, somehow, the law is the same under the protections that the president is entering into ... the notion that this is the same vehicle is simply ... not true."

On Capitol Hill, Republicans responded positively to the news.

In 2006, then-Sen. Obama voted for that military tribunal bill -- originally drafted by Republican Sens. McCain, Graham and John Warner of Virginia. But Obama opposed the changes that were made by the White House and supported by the three senators, which ultimately passed Congress. On the campaign trail, Obama called the Bush system flawed.

McCain said today he supports the Obama administration's intention and is "pleased" that the president has "adopted this view." But he added that many questions about detainee policy still need to be worked out.

"Today's announcement is a step -- but only a step -- toward a comprehensive detainee policy that will deal with the detainees held at Guantanamo and elsewhere in a fashion that both accords with our values and protects our national security," McCain said in a written statement.

Graham indicated he had met with Obama several times to discuss ways to improve the military commission system.

"The commanders believe a reformed system would be beneficial to the war effort as long as such a system is national security-centric," Graham said in a statement. "I agree with the president and our military commanders that now is the time to start over and strengthen our detention policies."

Some in the Democratic Party also were optimistic about the changes to military commissions.

"I have always said that establishing appropriate military commissions is possible," Sen. Patrick Leahy, D-Vt., said in a statement. "I objected to the military commissions that were created by the Bush-Cheney administration because they stripped away critical protections in our laws. I look forward to reviewing the Obama administration's proposals for providing a fair system of military commissions."

Senators are holding on to $50 million to shut down the base at Guantanamo Bay, contingent on a plan for detainees. The money will be discussed next week when senators consider a $91 billion war funding bill.

In 2006, the case of the first detainee tried for war crimes and found guilty by a military panel was taken to the Supreme Court, which ruled that the Bush administration did not have the authority to set up military commissions without congressional authority, and that they did not comply with parts of the military's Uniform Code of Military Justice and the Geneva Conventions.

That decision led Congress to pass the Military Commissions Act, which set new ground rules for trials of enemy combatants held at Guantanamo.

Obama and Military Tribunals

As a senator and presidential candidate, Obama supported legislation on military tribunals but was highly critical of the type of military commissions supported by the Bush administration, although he never said outright that they should be ended.

A White House official says that the president has "always envisioned a role for commissions, properly constituted."

Referring to why he wasn't voting for United States Military Commissions Act of 2006, supported by Bush, Obama said in 2006, "The problem with this bill is not that it's too tough on terrorists. ... 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."

He took another stab at it in 2008:

"By any measure, our system of trying detainees has been an enormous failure. Over the course of nearly seven years, there has not been a single conviction for a terrorist act at Guantanamo. There has been just one conviction for material support for terrorism. Meanwhile, this legal black hole has substantially set back America's ability to lead the world against the threat of terrorism, and undermined our most basic values," he said.

Just hours after taking the oath of office, Obama ordered 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.

Alternatives to Military Commissions

Another option for prosecuting detainees is by trial in the U.S. justice system under the guidelines of the Geneva Conventions. One example of that is 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 second alternative is to place detainees in the custody of other countries.

Soon after he took office and announced that he wanted to close Guantanamo Bay, Obama said officials would talk to their allies about moving detainees abroad. Just Friday, Algerian Guantanamo detainee Lakhdar Boumediene, who was accused of conspiring to bomb the U.S. embassy in Sarajevo, was sent to France to be placed in custody there.

Bringing detainees to the United States may be a more challenging task. Republicans say they would fight the move of detainees into prisons in their states. Senate Republicans are expected to force a vote next week on banning the importation of any detainee to U.S. soil.

The ranking Republican on the Senate Intelligence Committee, Sen. Kit Bond, R-Mo., has denounced both of these options, saying they would both compromise U.S. safety.

"Sending these terrorists back to the battlefield isn't an option because we know Gitmo graduates go back to fight," he said at a press conference Thursday. "Sending these terrorists to American communities isn't an option, either. I don't know any community in the United States that wants to have Gitmo terrorists there."

It remains to be seen whether the idea of revamped military commissions brings Republicans together with the White House on the issue of closing down Guantanamo Bay. Some former Bush officials say the changes are superficial and claim the system would remain much the same. It is likely to frustrate Obama's liberal supporters.

In the meantime, the administration also has to work out how to close the detainee facility at Guantanamo Bay within a year.

This week, the administration filed papers in a federal court stating that the task force set up by the president to carefully review the remaining detainee cases in Cuba is being seriously hampered by discovery requests from detainee lawyers in a pending case in federal court. Lawyers for the White House write that unless the judge steps in to quell those requests, the 56-person task force will be unable to meet the one-year deadline to close the detention facilities.

ABC News' Z. Byron Wolf, Luis Martinez and Ariane de Vogue contributed to this report.

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