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By David G. Taylor September 21, 2011

No end in sight for military commissions

The status of terrorism suspects held at Guantanamo Bay is still being contested 10 years after the September 11 terrorist attacks.

Civil rights groups criticized the Bush administration for its promotion of military tribunals to try terrorism suspects held at Guantanamo Bay, instead of federal courts on the U.S. mainland.

Trying at least some of these suspects in U.S. courts was one of President Barack Obama's objectives upon taking office, and widely considered a crucial step toward Obama's goal of closing the Guantanamo Bay detention center -- a promise that we rated Broken. The same executive order that announced the closure of the detention facility also halted military trials at Guantanamo. In November 2009, Attorney General Eric Holder announced that the Department of Justice would try Khalid Sheikh Mohammed -- the Al-Qaida mastermind behind the Sept. 11 terrorist attacks -- and four others in federal court in New York City.

A number of factors prevented these federal court trials from occurring.

Congressional lawmakers criticized the administration's plan, citing national security implications if terrorist suspects were brought to the U.S. mainland. New York City Mayor Michael Bloomberg, who initially supported civilian trials, reversed his stance, arguing that the extra security costs and general disruption would be too burdensome on the city. A last-ditch attempt at trying the suspects from a federal prison in the village of Otisville, N.Y. also fell through.

Particularly damaging to the administration's goal was the outcome of the civilian trial of Ahmed Ghailani, a suspect in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. Ghailani is unique for being the first former Guantanamo detainee to be tried in U.S. civilian court. A jury acquitted Ghailani of over 200 chargers in late 2010. Ultimately he was sentenced to life in prison after being found guilty of conspiracy to destroy government property. Despite his conviction, this experience left a sour taste in the mouths of many politicians. "If Ghailani had been acquitted of just one more count, he would have been considered innocent of these heinous crimes," said Rep. Lamar Smith, R-Texas, Chairman of the House Judiciary Committee in a press release.

Shortly thereafter the administration opted to try Mohammed and others in the military tribunal system. One reason for this decision was the National Defense Authorization Act for fiscal year 2011, in which Congress prohibited the use of defense funds to transfer prisoners from Guantanamo to the United States.  

Attorney General Eric Holder said the administration made the change so as not to delay prosecutions. "We must face a simple truth: those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their families who have waited nearly a decade for justice," he said.

The House of Representatives, now under Republican control, wants to renew the transfer ban for the next fiscal year. In July, the House passed the National Defense Authorization Act for fiscal year 2012, by 336-87. Like its predecessor, the act would prohibit funds from being used to transfer detainees to the United States. The Senate version of the budget bill passed through the U.S. Senate Armed Services Committee in June. The bill is still waiting for approval in the full Senate.

Without any clear alternatives, the Obama administration has been forced into employing the military tribunal system to try terrorist suspects. President Obama pledged that he would develop an alternative to military commissions. Despite the administration's efforts, we do not see this happening at any point in the near future. We rate this Promise Broken.

Our Sources

White House, Executive Order 13492, January 22, 2009.

U.S. Department of Justice, press release, November 13, 2009.

National Defense Authorization Act for Fiscal Year 2012, H.R. 1540.

National Defense Authorization Act for Fiscal Year 2012, S. 1253.

U.S. Senate Committee on Armed Services, press release, June 17, 2011.

U.S. Department of Justice, "Statement of the Attorney General on the Prosecution of the 9/11 Conspirators," April 4, 2011.

White House, Executive Order--Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, March 7, 2011.

USA Today, "House passes $649B defense spending bill," July 8, 2011.

USA Today, "N.Y. Mayor Bloomberg prefers terror trials be moved," January 27, 2010.

The New York Times, "Village Doubts It Could Have Handled Terror Trial," April 8, 2011.

The New York Times, "Ex-Detainee Gets Life Sentence in Embassy Blasts," January 25, 2011.

Rep. Lamar Smith, press release, January 25, 2011.

The Hill, "Obama to resume Gitmo military trials," March 7, 2011.

ABC News, "In Reversal, Obama Orders Guantanamo Military Trial for 9/11 Mastermind Khalid Sheikh Mohammed," April 4, 2011.

By Catharine Richert May 20, 2009

Obama taking a different approach on tribunals

President Barack Obama has been never been a fan of the military tribunals used for suspected terrorists at Guantanamo Bay, Cuba. So it is understandable that human rights advocates were surprised when the Obama administration announced May 15 that it would keep the special system designed to prosecute detainees but tweak the law to "restore the commissions as a legitimate forum for prosecution." The move represents a departure from earlier signs that the administration would scrap the controversial Bush administration approach completely, a promise we had rated as In the Works.
In 2006, lawmakers passed the Military Commissions Act to authorize the military tribunals after the Supreme Court ruled they violated U.S. and international law. As a senator, Obama voted against the bill. In August 2007, Obama pledged that, as president, he would "reject the Military Commissions Act, and adhere to the Geneva Conventions." The promise played well among liberals and human rights advocates who believe the commissions are unconstitutional. Obama received additional praise from groups like the American Civil Liberties Union just a few months ago when he asked that legal proceedings against detainees being held at Guantanamo Bay be suspended for 120 days while he reviewed the commissions process.
So it seemed Obama was ready to add the tribunals to a growing list of Bush-era relics.

Not so fast. Obama announced he would keep the commissions intact, a move that reversed the usual Washington roles: Liberals lobbed criticism at the Democratic president and conservatives praised him.
Still, Obama is offering some changes. He wants to prohibit statements taken from detainees who have been subject to cruel, inhuman and degrading interrogation methods from being used as evidence, and he wants to give detainees greater latitude in choosing their attorneys. Detainees who refuse to testify would be given protections and judges would be able to determine the jurisdiction of their own courts under Obama's plan. The use of hearsay — currently permissible in proceedings — would be limited as well.
The White House called it a wholesale change in approach. "I'm buying the car, except I'm changing the engine and painting it a different color and calling it a different thing," said White House spokesman Robert Gibbs when describing Obama's latest proposal. He added that Obama is not against the concept of military commissions, just that the current system is flawed.
Anthony D. Romero, executive director of the American Civil Liberties Union, said Obama was taking the wrong approach by trying to retain the commissions.
"As unfortunate as it is to inherit that legacy, to accommodate those policies is essentially to ratify them," Romero said. "President Obama would do well to remember his own infamous words during his presidential campaign: you can't put lipstick on a pig."
Duke University law professor Scott Silliman said that while Obama is taking a "step in the right direction" to create a fairer system for trying detainees, it is not a repudiation of the military commissions.

"It is not the courts-martial standard," he said. For example, "Obama's revisions would allow a detainee to choose his own military lawyer." But under the Uniform Code of Military Justice, the system used to try U.S. military personnel, "detainees would have the opportunity to employee a civilian lawyer from their own country."

Congress has 60 days to review Obama's proposal, but making the changes requires no legislative action. Nevertheless, Obama says he intends to work with Congress to make additional adjustments.

So after rating this promise In the Works in the early days of Obama's presidency, we now find he is backing away from the promise. He is proposing changes, but he's not scrapping the overall framework. While we're not ready to declare this a Promise Broken because Congress has 60 days to review Obama's proposed changes, it's clear to us that Obama is taking a different approach than he outlined during the campaign. For now, we rate this one as Stalled.

Our Sources

Robert Farley
By Robert Farley January 21, 2009

Obama moves toward scrapping the Military Commissions Act

On the day he was inaugurated, the Obama administration took a definitive step toward fulfilling the promise of developing an alternative to President Bush's Military Commissions Act when it directed prosecutors to file a motion seeking to suspend legal proceedings against detainees at the naval facilities at Guantanamo Bay, Cuba.

The motion asks for 120 days in order to give the administration "time to review the military commissions process, generally, and the cases currently before military commissions, specifically."

A judge in one of the war crimes cases, Army Col. Stephen Henley, issued a ruling Wednesday agreeing to suspend the proceedings at the naval base in Guantanamo Bay, Cuba, pending the 120-day review.

According to the motion filed at the request of President Obama, the 120-day suspension of proceedings will provide the administration "time to conduct a review of detainees currently held at Guantanamo Bay, Cuba, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution."

The review is seen as a major first step toward Obama's promise of ultimately closing the controversial detention facility opened after the Sept. 11, 2001, terrorist attacks. It also could mean the end of the Military Commissions Act.

The move was hailed by the American Civil Liberties Union and other civil rights organizations that have criticized the legal processes at Guantanamo as unconstitutional.

"On Day One, President Obama kept his promise to halt the unconstitutional military commissions by ordering the prosecution to seek a 120-day suspension," said Anthony D. Romero, Executive Director of the ACLU. "Had the proceedings continued, the Bush administration would have permanently tied his hands and stopped him from being able to fulfill a top level campaign promise. Within the next 120 days, we trust that the President's team will be studying and finalizing plans and a timeline for permanently closing Guantanamo, shuttering the military commissions and ensuring justice is served in the best of American traditions. President Obama's 'time out' comes at the perfect time in these shameful military commissions and shows he means business on Day One. President Obama has to restore an America we can be proud of again by once and for all shutting down Guantanamo and its shameful military commissions."


The suspension of legal proceedings at Guantanamo buys the Obama administration time to revisit the Military Commissions Act. That's a step toward fulfilling the promise and warrants a new status of In the Works.


Our Sources

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