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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.
The Journal adds that the Obama administration is considering further modifications to the tribunal system, and is expected to ask military judges to stay the tribunals of nine detainees who are currently charged for another 120 days, in order to work with Congress on implementing those changes.
CNN writes that the changes are not likely to satisfy critics of the tribunals, who were already unhappy with the Obama administration's decision yesterday not to release new photos of detainees being abused while in US custody. CNN notes that Anthony Romero, executive director of the American Civil Liberties Union, has already attacked the idea of modifications to the system as "fatally flawed."
"The military commissions are built on unconstitutional premises and designed to ensure convictions, not provide fair trials," Romero said in a prepared statement released earlier this week after speculation about the restart of military tribunals surfaced. "Reducing some but not all of the flaws of the tribunals so that they are 'less offensive' is not acceptable; there is no such thing as 'due process light.' "
Two of the administration officials said the president will also leave open the option of starting civilian trials on U.S. soil for some of the detainees. But that, too, is a fiercely debated issue on Capitol Hill because of concerns by lawmakers in both parties about where the terror suspects will be kept during such trials.
The Daily Telegraph cites similar criticism from Human Rights Watch counterterrorism adviser Stacy Sullivan, who said that "reviving the military commissions would strip much of the meaning from closing Guantánamo." But the Telegraph adds that Republicans, who criticized Obama's decision to halt the tribunals, have welcomed the changes.
Republican Senator Lindsey Graham applauded the decision to revamp the tribunals as a step toward strengthening policies that have been derided worldwide.
"I continue to believe it is in our own national security interests to separate ourselves from the past problems of Guantanamo," said Sen Graham. "I agree with the president and our military commanders that now is the time to start over and strengthen our detention policies. I applaud the president's actions today."