Uh Oh...The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a
target of critics during the Bush administration, including Mr. Obama himself. Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
Continuing the military commissions in any form would probably
prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system.Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.
Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.
“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”
Several officials insisted on anonymity because the administration has directed that no one publicly discuss the deliberations.
Administration officials said Friday that some detainees would be prosecuted in federal courts and noted that Mr. Obama had always left open the possibility of using military commissions.
Still, during the presidential campaign Mr. Obama criticized the commissions, saying that “by any measure our system of trying detainees has been an enormous failure,” and declaring that as president he would “reject the Military Commissions Act.”The military commissions, which were established specifically for trying Guantánamo detainees, have been subject to repeated delays and court challenges that argued that detainees were being denied basic rights of American law. Only two trials have been completed in the nearly eight years since the Bush administration announced that it would use military tribunals.
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