Obama to relaunch military tribunals for terror suspects
Some Guantánamo detainees – with new legal protections for statements made under interrogation – will be tried.
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The Associated Press reports that President Obama's decision, which is expected to be announced Friday, is apt to renew controversy over the military tribunal system established for detainees under the Bush administration. Obama had ordered a 120-day freeze of the system just days into his presidency in order to review the procedures, which had been criticized for failing to provide due process safeguards to detainees.
The tribunal system – set up after the military began sweeping detainees off the battlefields of Afghanistan in late 2001 – has been under repeated challenges from human rights and legal organizations because it denied defendants many of the rights they would be granted in a civilian courtroom.
An administration official familiar with Obama's decision said between 10 and 20 of the 241 detainees currently at the detention center in Guantanamo Bay, Cuba, would be tried by military commissions. Thirteen other detainees — including five charged with helping orchestrate the Sept. 11 attacks — already have been moved into the system and are expected to be tried there.
The rest of the detainees would either be released, transferred to other nations or tried by civilian prosecutors in U.S. federal courts, an official said. It's also possible that some could continue to be held indefinitely as prisoners of war with full Geneva Conventions protections, according to another senior U.S. official.
The Wall Street Journal reports that the revamped tribunal procedures were developed in part by US military lawyers in response to the Military Commissions Act of 2006, but were rejected at the time by the Bush administration. The new procedures feature a ban of evidence acquired from "cruel, inhuman or degrading" interrogations and a streamlined process for detainees to replace their assigned lawyers, but most of the changes "involve the use of hearsay evidence – that is, statements introduced without giving the defendant a chance to cross-examine the witness."
Although hearsay generally is barred in American courts, Guantanamo prosecutors say that at least 90% of the evidence against detainees consists of statements that either they or other prisoners have made under interrogation.
When regular courts do admit hearsay statements, the party introducing the statement generally must demonstrate its reliability. The Bush administration shifted that burden for military commissions, effectively meaning the defendant would have to show why a hearsay statement against him was unreliable. The Obama rule changes are expected to revert to the traditional formula.
In the event a detainee sought to admit his own statements taken through interrogation, Bush rules required military judges to warn jurors that the defendant was avoiding cross-examination. The new rules are expected to delete that requirement. Like civilian courts, the military commission won't be permitted to draw an adverse inference from a defendant's refusal to testify, officials said.