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Obama Set to Revive Military Commissions
Changes Would Boost Detainee Rights

By Peter Finn
Washington Post Staff Writer
Saturday, May 9, 2009

The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

The military commissions have allowed the trial of terrorism suspects in a setting that favors the government and protects classified information, but they were sharply criticized during the administration of President George W. Bush. "By any measure, our system of trying detainees has been an enormous failure," then-candidate Barack Obama said in June 2008.

In one of its first acts, the Obama administration obtained a 120-day suspension of the military commissions; that will expire May 20. Human rights groups had interpreted the suspension as the death knell for military commissions and expected the transfer of cases to military courts martial or federal courts.

Officials said yesterday that the Obama administration will seek a 90-day extension of the suspension as early as next week. It would subsequently restart the commissions on American soil, probably at military bases, according to a lawyer briefed on the plan.

"This is an extraordinary development, and it's going to tarnish the image of American justice again," said Tom Parker, a counterterrorism specialist at Amnesty International.

A White House official said no final decision has been made, and one source involved in the discussions said the plan awaits Obama's approval.

The administration's extension would allow it to meet a requirement to provide Congress with 60 days' notice of any rule changes in the way the commissions function, officials said. Congress established the commissions in 2006 after the Supreme Court struck down a system of military tribunals created by the Bush administration.

The Obama administration's plan to reinstate the commissions with modifications reflects the fear that some cases would fail in federal courts or in standard military legal settings.

"It looks a lot more difficult now than it did on Jan. 20," said one government official.

Civil liberties advocates, who insist that federal courts can handle terrorism cases, vowed to challenge any new process.

"We'll litigate this before they can proceed, absolutely," said Anthony D. Romero, the executive director of the American Civil Liberties Union. "Any effort to tinker with military commissions would be an enormous mistake. There is no way to fix a flawed process that has not rendered justice."

Under the administration's rule changes, hearsay evidence would be admissible if a judge determines it is reliable, officials said. That provision would allow the government to introduce some intelligence material that would ordinarily be barred in federal court or military courts martial, the officials said. There is precedent for admitting hearsay evidence in international courts, including at the International Criminal Tribunal for the former Yugoslavia.

Romero said allowing hearsay in any U.S. courtroom is a "greater travesty than Bush administration justice."

It is unclear whether some cases would still go to federal court or perhaps other military proceedings for trial.

During the presidential campaign, Obama criticized the commissions as failing to provide "swift and sure justice" for terrorism suspects, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, who was captured in March 2003. Since the opening of the U.S. military detention center at Guantanamo Bay in January 2002, three detainees out of the 779 who have been held there have been convicted of terrorism offenses. The system has been subject to repeated legal challenges.

An administration official said yesterday that Obama, while a senator, had agreed that military courts with sufficient safeguards were an appropriate venue for cases against detainees but thought that the 2006 Military Commissions Act was "sloppy" and rushed for political purposes.

The administration's decision to close the Guantanamo Bay prison has been the focus of intensifying criticism from Republicans and some Democrats who say they fear that holding and trying detainees in the United States poses security risks.

Expectations that the administration will soon allow a handful of Chinese Muslims who were captured in Afghanistan and who are detained at Guantanamo to live in the United States has caused concern among some legislators and military groups. A U.S. district court judge ordered them freed.

European and U.S. officials say the resettlement of a token group of detainees is essential to convince European governments to accept other Guantanamo detainees who have been cleared for release. The decision to maintain military commissions might assuage some of the administration's domestic opponents, but it could also provoke criticism from allies who expected a complete break with the past.

"This is going to greatly complicate the efforts of the administration to transfer people," said Sarah Mendelson, the author of a report on Guantanamo Bay and a senior fellow at the Center for Strategic and International Studies.

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