http://www.nytimes.com/2009/05/16/us/politics/16gitmo.html?_r=1&ref=politics&pagewanted=print
May 16, 2009
Obama Will Keep Detainee Trial System, Angering Allies
By WILLIAM GLABERSON
Obama administration officials said Friday that the administration would prosecute some Guantánamo detainees in a military commission system that was a much-criticized centerpiece of the Bush administration’s strategy for fighting terror.
Administration officials said they were making changes in the system to grant detainees expanded legal rights, but critics said the move was a sharp departure from the direction suggested by Mr. Obama during the campaign when he characterized the commissions as an unnecessary compromise of American values.
In a statement, President Obama noted that there is a long American tradition of using military commissions and said the administration was proposing changes to make them provide fairer justice.
He said that the commissions would be used as one avenue for prosecution along with existing American courts. “This is the best way to protect our country, while upholding our deeply held values,” the statement said.
The commissions are run by the Pentagon under a law passed specifically for terrorism suspects and in part to make it easier for the government to win convictions than it would be in existing American courts.
Following Mr. Obama’s about face earlier this week when he announced his decision not to release photographs of detainee abuse, Friday’s announcement again left the administration in the awkward position of being cautiously praised by some adversaries and harshly rebuked by some usual allies.
The Senate Republican leader, Mitch McConnell, who issued daily criticisms of the president’s announced plan to close the detention center for terror suspects at Guantánamo Bay, Cuba, called the decision to use the military tribunals “an encouraging development.”
David Rivkin, a Washington lawyer who was an official in the Reagan administration, said the decision suggested the Obama adminsitration was coming to accept the Bush administration’s thesis that terror suspects should be viewed as warriors, not as criminals with all the rights accorded them in American courts.
“I give them great credit for coming to their senses after looking at the dossiers,” of the detainees, Mr. Rivkin said.
The decision benefits the administration politically because it burnishes Mr. Obama’s credentials for taking a hard line toward terrorism suspects. Some administration insiders say top officials have appeared surprised by the ferocity of the largely Republican opposition to Mr. Obama’s effort to close the Guantánamo Bay prison, where 241 detainees remain.
The issue has become a difficult one for some Democrats on Capitol Hill because they are hearing from constituents who have expressed anxiety about a potential move into the United States of detainees the Bush administration called “the worst of the worst.”
Some Democrats backed the president Friday. But coming the same week Democratic leaders refused to include $80 million the White House had sought for closing Guantánamo in a war-spending bill, it was not clear whether support for the president’s approach to a closuremayGuantánamo be weakening among Democrats.
Senator Carl Levin, the Democratic chairman of the Senate Armed Services Committee, said the president’s decision to reform the rules for military commissions had been essential. But he added that “military commissions can play a legitimate role in prosecuting” detainees.
But some liberals and human-rights groups said they were stunned by what some of them called a betrayal. They said the prospect of the new administration presiding over military trials at Guantánamo would hurt Mr. Obama’s efforts to improve relationships around the world and would embroil the administration in years of legal battles.
The executive director of Human Rights First, Elisa Massimino, called the commission system of trying war crimes cases irredeemable. “Tinkering with the machinery of military commissions will not remove the taint of Guantánamo from future prosecutions,” she said.
The executive director of the American Civil Liberties Union, Anthony D. Romero, said he was preparing an advertising campaign that will call the use of an inferior legal system to try detainees “the Bush Obama doctrine.”
The new system would limit the use of hearsay evidence against detainees, ban evidence gained from cruel treatment, and give defendants more latitude to pick their own lawyers.
But the new rights still fall far short of the protections provided in federal court, lawyers said, predicting that the administration would encounter energetic new legal challenges that could take years to resolve.
The Washington advocacy director for Human Rights Watch, Tom Malinowski, said the decision was mystifying. He said he feared it would leave the administration with “the symbolic baggage of the system they inherited from the Bush administration without the procedural advantages” intended to assure easy convictions.
Officials said the decision to proceed with military commissions came partly as a result of concerns that some detainees might not be successfully prosecuted in federal courts. They said lawyers reviewing the cases worried that, among a host of issues, federal courts procedures might be too cumbersome to protect classified evidence that is likely to be central to many cases.
They also said questions surrounding the brutal treatment of some detainees had become an obstacle. Though some detainees did give so-called “clean” confessions to participating in terrorist activities in 2007, they were not given the warnings against self-incrimination that are standard law-enforcement practice because of constitutional protections.
In some cases, lawyers said, convictions may be nearly impossible without the detainees’ confessions. The most prominent of the military commissions cases seeks the death penalty for five detainees, including the self-described terrorism mastermind, Khalid Shaikh Mohammed, for their alleged roles as the coordinators of the Sept. 11, 2001 attacks.
Administration officials said that some detainees would be prosecuted in federal courts. But they also noted that there were military commission cases against 13 detainees when President Obama asked military judges for a four-month suspension the day he took office. They said reviews of detainees’ cases were continuing and they did not specify which detainees might be prosecuted in which system.
During the campaign, Mr. Obama criticized the military commission system as a failure, saying: “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” which is used to prosecute members of the armed services.
Since the election administration officials have said the separate military commission system remained an option. But critics said they had expected the administration to dismantle the system.