some detainees before military commissions. The
May 16, 2009
Obama to Keep Tribunals; Stance Angers Some Backers
By WILLIAM GLABERSON
The White House said Friday that the administration would prosecute some detainees being held at the prison in Guantanamo Bay, Cuba, in a military commission system, a much-criticized centerpiece of the Bush administration’s strategy for fighting terror.
Administration officials said they were making changes in the system to grant detainees expanded legal rights, but critics said the move was a sharp departure from the direction President Obama had suggested during the campaign, when he characterized the commissions as an unnecessary compromise of American values.
In a statement, Mr. Obama noted that the country had a long tradition of using military commissions, and said the changes would make the tribunals, to be used along with federal courts, a fairer avenue for prosecution. “This is the best way to protect our country, while upholding our deeply held values,” Mr. Obama said.
The commissions are run by the Pentagon under a 2006 law passed specifically for terrorism suspects, in part to make it easier to win convictions than in federal courts. The Obama administration suspended the military commission system in its first week in office.
Like Mr. Obama’s about-face on Wednesday, when he decided not to release photographs documenting detainee abuse, the announcement Friday on tribunals left the administration in the awkward position of being cautiously praised by some adversaries and harshly rebuked by some usual allies.
The Senate Republican leader, Mitch McConnell of Kentucky, who has issued daily criticisms of the president’s plan to close Guantanamo, called the move to revive the tribunals “an encouraging development.”
David B. Rivkin Jr., a Washington lawyer who was an official in the Reagan administration, said the decision suggested that the Obama administration was coming to accept the Bush administration’s thesis that terror suspects should be viewed as enemy fighters, not as criminal defendants with all the rights accorded by American courts.
“I give them great credit for coming to their senses after looking at the dossiers” of the detainees, Mr. Rivkin said.
The decision benefits the administration politically because it burnishes Mr. Obama’s credentials as a leader who takes a hard line toward terrorism suspects. Some administration insiders say top officials have appeared surprised by the ferocity of the largely Republican opposition to Mr. Obama’s effort to close Guantanamo, where 240 detainees remained after an Algerian, Lakhdar Boumediene, was freed Friday and sent to France. Mr. Boumediene was at the center of a landmark Supreme Court ruling against the Bush administration’s Guantanamo policies last year.
Guantanamo has become a difficult issue for some Democrats on Capitol Hill because constituents have expressed anxiety about potentially freeing a small number of detainees or moving those that the Bush administration called “the worst of the worst” to prisons in the United States.
Some Democrats backed the president Friday. Senator Carl Levin, Democrat of Michigan, chairman of the Armed Services Committee, said the military commissions could play “a legitimate role in prosecuting” detainees.
But given that Democratic leaders in the House this week pulled $80 million from a war-spending bill that the White House had sought for closing Guantanamo, saying the president had not presented a plan for the detainees there, it was not clear whether support for the president’s approach on the issue was weakening among Democrats.
The Obama administration’s proposed changes would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment and give defendants more latitude to pick their own lawyers. Cases against 13 detainees were suspended in January. The administration said Friday it would seek to extend the suspension another four months.
Some liberals and human rights groups said they were stunned by the announcement on Friday, with several calling it a betrayal. They said the image of the new administration holding military trials at Guantanamo would hurt Mr. Obama’s efforts to improve relationships around the world and would embroil the administration in years of legal battles.
“Tinkering with the machinery of military commissions will not remove the taint of Guantanamo from future prosecutions,” said Elisa Massimino, the executive director of Human rights First, an advocacy group.
The executive director of the American Civil Liberties Union, Anthony D. Romero, said he was preparing an advertising campaign that would call the use of what he considered an inferior legal system to try detainees “the Bush-Obama doctrine.”
The added rights proposed by the administration still fall far short of the protections provided defendants in federal court, lawyers said, predicting that the administration would encounter vigorous new legal challenges that could end up in the Supreme Court.
The Washington advocacy director for Human rights Watch, Tom Malinowski, said the decision on Friday was mystifying. He said he feared it would leave the administration with “the symbolic baggage of the system they inherited from the Bush administration without the procedural advantages” intended to assure easy convictions.
Officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said that questions surrounding confessions made after the brutal treatment of some detainees had become an obstacle. Though some detainees, in so-called clean confessions, admitted to terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard in law enforcement.
Federal courts would likely ban such confessions, lawyers said, and, in some cases, convictions may be nearly impossible without them. The most prominent of the military commissions cases seeks the death penalty for five detainees charged with planning the Sept. 11, 2001, attacks, including the self-described mastermind, Khalid Shaikh Mohammed.
Administration officials said that some detainees would be prosecuted in federal courts, but did not specify which ones.
During the campaign, Mr. Obama criticized the military commission system as a failure. “It’s time to better protect the American people and our values,” he said, “by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” which is used to prosecute members of the armed services.
On cable television Friday, Republican loyalists called the decision to revive the military commissions a “flip-flop” by Mr. Obama. But Mr. Obama noted in his statement that as a senator in 2006, he once voted for military commission trials for detainees.
The White House press secretary, Robert Gibbs, objected when reporters suggested that the president was planning to use the Bush administration’s system for prosecuting terror suspects. Mr. Gibbs said it was more like buying a used car but “changing the engine and painting it a different color.”