Resumed Guantanamo Bay military panels face new challenges

By Peter Finn
Washington Post Staff Writer
Friday, December 4, 2009

GUANTANAMO BAY, CUBA -- Military commissions at Guantanamo Bay, which President Obama suspended amid much fanfare immediately after taking office, quietly resumed this week with new signs of the legal complexities of the cases and the challenges for prosecutors.

The military court had to grapple with determining where a defendant, Ibrahim Ahmed Mahmoud al Qosi -- and by extension other detainees -- stand under the new military commissions law enacted in October to provide more due process for detainees.

Under the old system, Qosi and other detainees were called "unlawful enemy combatants," but the new law refers to them as "alien unprivileged enemy belligerents," a moniker that military prosecutors said is more in line with the Geneva Conventions. The government said it wanted to amend the charges against Qosi to reflect the new language, but his defense attorneys argued that a separate court hearing was necessary.

The military judge agreed Thursday, and set a hearing for Jan. 6. One military prosecutor feared it could become a "mini-trial" in itself, adding to the government's burden in that case and others.

The restart of tribunals shows the hard choices the Obama administration is facing in pursuing prosecution of Guantanamo Bay detainees. While moving some to federal court, evidence rules have forced the administration to keep some cases before military commissions, which the president had criticized during his campaign. That has opened military prosecutors to complaints from human rights groups and defense lawyers about the fairness of decisions determining in which court detainees should be tried.

Officials said military commissions will be held at Guantanamo Bay past the January date Obama set for closing the military prison, and tribunals are likely to continue for years at whatever location is ultimately chosen in the United States -- a place some in the military here are already referring to as "Gitmo North."

The administration decided earlier this year that it would preserve commissions and use them in conjunction with federal criminal trials to prosecute some detainees held at Guantanamo Bay.

Attorney General Eric H. Holder Jr. announced last month that five men accused of organizing the attacks of Sept. 11, 2001, would be transferred to federal court in New York but five others would remain in military commissions, including Qosi.

Military prosecutors said dozens of the 211 detainees who remain at Guantanamo Bay could yet be brought before commissions, potentially including capital cases that would entail lengthy and complex litigation.

"Will there be a moment when the commissions have ended?" Navy Capt. John F. Murphy, the chief military prosecutor, said in an interview. "Yes, but it could very well be years from now."

Already, Holder has said that Abd al-Rahim al-Nashiri, an alleged planner of the attack on the USS Cole in Yemen, will be tried in a military commission. The prosecution is expected to bring new capital charges in 2010, opening proceedings against him at Guantanamo Bay.

His case, and others, probably will move to a state prison in Illinois that the federal government is eyeing as the site of both military commissions and a facility to hold some detainees in prolonged detention under the laws of war. But government officials said it could be late next year before the maximum-security prison on the border with Iowa is ready to hold trials and prisoners of war.

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