How military tribunals will change under Obama's decision
His modifications ban evidence obtained through cruel treatment and restrict prosecutors' use of hearsay evidence. Also, detainees will have more flexibility in choosing their lawyers.
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"The Obama administration's adoption of the stonewalling tactics and opaque policies of the Bush administration flies in the face of the president's stated desire to restore the rule of law, to revive our moral standing in the world and to lead a transparent government," said Anthony Romero, executive director of the American Civil Liberties Union, in a statement Wednesday about the photo decision.Skip to next paragraph
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It is in the context of this heated atmosphere that Mr. Obama has decided to retain the military commission system, with modifications.
Obama said in a statement released Friday that restarting the modified military tribunals for a small number of terrorist suspects "is the best way to protect our country, while upholding our deeply held values."
Under the Bush system, hearsay evidence had been allowed in the commissions, unless the defendant could prove it was unreliable. Obama is proposing to flip that responsibility, by disallowing hearsay unless the prosecution can prove it is reliable.
Hearsay, or evidence heard secondhand, is generally admissible in civilian US courts only under certain restrictive conditions.
The Obama administration's changes will allow detainees more flexibility in choosing their lawyers. They will also ban all evidence obtained through cruel, inhuman, or degrading treatment. This probably would bar statements coerced through waterboarding, stress positions, and some other controversial Bush-era interrogation techniques.
These immediate rule changes would be carried out by executive order, Obama said. He also asked Congress to change the 2006 law on which the current tribunal system is based, so as to make more sweeping reforms in the future.
Obama is now in the position of reviving a system that he criticized as a senator and presidential candidate.
As he changes the commissions to make them more like civilian trials, he will get closer and closer to an obvious problem, says Professor Tobias of the University of Richmond.
"You might eventually say, 'What is the point?' " he says. "Why not just try these detainees in federal court?"
But trials for terror suspects in US civilian courts have proved difficult in the past – and might be especially so for suspects captured overseas and long held at the Guantánamo prison.
The administration might worry about being forced to divulge classified national-security information in a civilian trial. The question of torture might also loom larger.
"My guess is the administration does not want these trials [in a civilian venue] because they are going to be very difficult," says Hurst Hannum, a professor of international law at Tufts University in Medford, Mass.
In principle, it is possible that the military tribunals could meet minimum international standards of justice, Professor Hannum says. But that might be seen only as they proceed.
"The devil is in the details," he says.