Obama to Revamp Military Tribunals
Stance Is Reversal on Trials for Detainees

By Michael D. Shear and Peter Finn
Washington Post Staff Writers
Saturday, May 16, 2009

As a candidate for president, Barack Obama offered himself as a clear alternative to Bush-era anti-terrorism policies. Governing has proven muddier.

Yesterday, President Obama announced that he will revamp, rather than reject, the system of military tribunals that President George W. Bush created to try terrorism suspects. Earlier in the week, Obama indicated that he will fight the release of photos depicting alleged abuse of detainees during Bush's tenure.

The reaction has been fierce. The American Civil Liberties Union accused the president of "stonewalling tactics and opaque policies" after the photo decision. And yesterday, the group threw Obama's words from the campaign back at him: "You can't put lipstick on a pig," it said of his efforts to revamp the commissions. Human rights groups vowed to fight Obama in court.

Early moves to ban torture and shutter the detention center at Guantanamo Bay, Cuba -- decisions hailed by human rights groups here and abroad -- have been followed by other moves that have left many of Obama's ardent supporters disappointed and angry.

Obama has backed Bush's warrantless wiretapping program, expanded the war in Afghanistan and opposed prosecution of those involved in what some call torture of detainees -- a refusal that continues to echo as the country debates the effectiveness of past interrogations.

Yesterday's announcement was a unmistakable reversal for a man who, as a candidate, had promised to shelve the military commissions and called their use under Bush an "enormous failure."

"I have faith in America's courts," Obama said Aug. 7. "I have faith in our JAGs. As president, I'll close Guantanamo, reject the Military Commissions Act, adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists."

His message in reversing his stance yesterday was more muted. "Military commissions have a long tradition in the United States," Obama said in a statement. "They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered."

Top Obama aides insist that the president is staying true to his principles by ending torture, winding down the Iraq war and closing Guantanamo. But they describe as "excruciating" the weight of the responsibility that he feels to keep the country safe.

"The president has made some enormous strides in changing the direction of our policies," senior adviser David Axelrod said. "But implementing them has its challenges, because you constantly have to balance equities and responsibilities and make decisions that are in the best interest of the country's security in a way that's consistent with our values."

Inside the administration, the debate over the military commissions was rigorous, with Obama eventually siding with the generals and other military officials who feared that bringing some detainees before regular courts would present enormous legal hurdles and could risk acquittals.

That argument, presented to Obama by his top national security aides, prevailed over Justice Department prosecutors' assertions that federal courts or long-established military courts-martial could ensure the swift and successful prosecution of captured terrorism suspects, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks.

FBI teams that reinterviewed Mohammed and 13 other high-value detainees transferred to Guantanamo to obtain fresh testimony, free from the taint of earlier coercive interrogation, did not provide Miranda warnings to those detainees. Some in the administration argued that the failure to do so was a major barrier to shifting some cases to federal court.

Obama's decision jolted back to life one of the most controversial elements of his predecessor's terrorism-fighting arsenal and leaves the administration at odds with some core supporters who argued that Guantanamo-style tribunals in any form should be junked.

Reviled by human rights groups as illegitimate and described by their defenders as an essential tool to prosecute some terrorism suspects, the military commissions long ago became a lightning rod in a global debate on how best to combat terrorism.

White House officials stressed that Obama has long expressed support for properly run military commissions and that his criticism of the Bush-era tribunals has always been that they failed to provide appropriate rights for detainees.

"The president has been consistent in his views on this issue and been consistent on what was lacking in order to ensure justice, in order to ensure protection, and most of all to ensure that this process goes forward with and doesn't see repeated legal stalls in going through the court system," press secretary Robert Gibbs said in his daily briefing.

Several Republicans savored the opportunity to find common ground with the Democratic president.

"Today's action will afford us the opportunity to reform the military commission system and produce a comprehensive policy regarding present and future detainees," said Sen. Lindsey O. Graham (R-S.C.) in a statement. "I applaud the President's actions."

The administration moved quickly to soothe some of its critics on the left. White House counsel Gregory B. Craig led a conference call yesterday afternoon with human rights groups to explain Obama's reasoning. But most participants said they left the conversation unconvinced.

"I did not hear him make the case why commissions are necessary," said Elisa Massimino, the executive director of Human Rights First. "They seemed fixated on making the case that this is not inconsistent for Obama. But I heard nothing on why this is part of a smart counterterrorism strategy."

Kenneth Roth, executive director of Human Rights Watch, said that "by resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda."

The administration did not say who will be brought before commissions or to what extent the federal courts will be used to try Guantanamo detainees. Currently, 21 of the 240 detainees have been charged, and 13 of those defendants have been referred to commissions for trial by a Pentagon official.

The administration will now seek a second 120-day delay for nine of those cases while it asks Congress to revamp the commissions. Obama said the changes will include a ban on the use of evidence obtained from coercive interrogations, limits on the use of hearsay, more latitude for detainees in selecting their attorneys and protections for defendants who refuse to testify.

Research editor Alice Crites contributed to this report.

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