May 15, 2009|By Julian E. Barnes | Julian E. Barnes,Tribune Washington Bureau
WASHINGTON - - The Obama administration will announce plans Friday to revive the Bush-era military commission system for prosecuting accused terrorists, current and former officials said, reversing a presidential campaign pledge to rely instead on federal courts and the traditional military justice system.
Word of the imminent decision infuriated human rights groups, who argued that any trials under the system created by former President George W. Bush would be widely viewed as tainted and said the Obama administration was duplicating the mistakes of former administration.
The announcement follows other moves by President Barack Obama that have disappointed the administration's liberal allies but heartened supporters of Bush, including the decision to withhold photos of abused detainees and to retain the option of using a limited form of rendition, the practice of turning terrorism suspects over to other countries for questioning.
White House officials insisted that Obama was not overturning a campaign vow. The president "never promised to abolish" military commissions, an administration official said. However, during his campaign Obama repeatedly called for change.
"It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in one such statement on the subject last August.
The administration still intends to prosecute some Guantanamo Bay detainees in federal courts, as Obama had pledged. But officials have concluded that a small number of detainees can be tried only in the military commissions, said a U.S. official familiar with the changes, speaking on condition of anonymity in advance of Friday's announcement.
The administration on Friday also will outline major changes to the military commission system that will be used in future trials.
Gabor Rona, the international legal director of Human Rights First, said military commission trials are unlikely to be seen as legitimate forms of justice.
"Everyone knows the military commissions have been a dismal failure," said Rona. "The results of the cases will be suspect around the world."
But Charles Stimson, a former Bush administration official who oversaw detainee affairs at the Pentagon, applauded Obama's proposal as one that would bring needed change to the military commission system while keeping it intact.
"It is a good start. The closer they get to courts-martial the better," Stimson said. "They should learn from the mistakes the Bush administration made, then proudly defend the military commissions."
Under the commission system, military officials have obtained just three convictions in eight years.
The administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and will restrict the use of hearsay evidence.
The rule changes will also give detainees more latitude in choosing lawyers to represent them, according to the U.S. official, who described them on condition of anonymity because of Friday's announcement.
But those changes are widely viewed as cosmetic by critics both in and out of government.
For example, under the Military Commissions Act, the law enacted by Congress in 2006 to retool and legally sanction the system, rules against evidence obtained through coercion were fairly strict. And in practice, military judges have refused to allow any coerced testimony in trials.
Friday's move will represent the president's latest attempt to solve the dilemma of what to do with Guantanamo Bay detainees.
In his first week in office, Obama ordered all military commission trials be halted for 120 days and subsequently announced he would close Guantanamo within a year.
But the administration has put off thorny political and legal decisions. As the new administration began reviewing cases and considering the ramifications of shifting trials to federal courts, they eventually concluded the military commissions must remain as an option. "They took a look at all the cases," said the U.S. official. "They compared and contrasted and decided the military commissions are the best way to go."
Human rights advocates argued, however, that nothing the administration could do to alter the commissions would make them appear fair.
"I am afraid the stench of Guantanamo will remain," said Tom Malinowski, the Washington advocacy director of Human Rights Watch. "Anything that goes by the name 'military commissions' will unfortunately be seen around the world as a continuation of the old system."
As part of Friday's announcement, the administration will announce a further 120-day delay in any commission trials, preventing any legal proceedings from resuming at least until mid-September, the U.S. official said. The administration also would consider further changes to the system recommended by lawmakers.
Stimson said commissions would work best in relatively simple cases. The most complex cases, including that against self-proclaimed Sept. 11 organizer Khalid Sheikh Mohammed, should be brought to federal court, where prosecutors are more experienced than military judge advocate generals, Stimson said.
