Guantanamo cases may go to military courts?(more)

( – promoted by buhdydharma )

For all the reading Ive done in recent months, I have not quite gotten to this whole issue of military versus criminal court systems for trying the Gitmo prisoners, so Im pretty clueless here. I can gather a few things from this article but I just don’t have the whole picture at all. The article has an awful lot of “could be’s” and “mights”.

New York Times has U.S. May Revive Guantánamo Military Courts today.

Anyone care to fill me in or comment further?

NOTE: This story was diaried last night at the orange, by marketgeek,  but went without much comment. It was late I guess.

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.


Any plan to adjust the military commissions would walk a tightrope of granting the suspects more rights yet stopping short of affording them the rights available to defendants in American courts. Several lawyers say the commissions are only beneficial for the government if they make it easier to win a prosecution than it would be in federal court.

The Bush administration’s commission system was criticized in part because it permitted evidence that would often be barred in federal court, like evidence obtained through coercive interrogations and hearsay.

NYT piece gives some background here, which makes me think that, well, the Obama team is trying to figure out SOME kind of way out of this mess. He did, after all, “CLOSE” Gitmo back in January and we’ve seen nearly no movement in that direction in terms of any actualities. Promises, promises. No realistic justice-based path open? What? Why not?

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.

So, I wonder if they are considering this track for only those detainees who might actually be, uhm, you know, guilty? And what’s to be done with the remaining prisoners, the ones who are most likely NOT guilty, and have nowhere to go? Why is it that they feel they CANNOT go ahead through regular American courts’ process?

The piece includes some observations, of course, from the critics (us’s):

Human rights groups said Friday that using any form of military commission would be seen as permitting shortcuts that would not be available in existing American courts.

Anthony D. Romero, the executive director of the American Civil Liberties Union, said that Mr. Obama had pledged to return the country to the rule of law and that “continuing with the military commission system would be a retreat from that promise.”

And, toward the end, we finally get some quotes…

It is not clear how many of the remaining 241 detainees are likely to be prosecuted. The four-month suspension of military commission proceedings Mr. Obama ordered is to end May 20. As a result, administration officials are considering whether to ask military judges at Guantánamo for an additional delay. In making such a request, administration lawyers might outline their proposed changes.

In recent days, senior administration officials have hinted publicly that commissions were far from dead, yet offered no specifics and their comments drew little attention. In Congressional testimony on Thursday, Defense Secretary Robert M. Gates said, “The commissions are still very much on the table.”

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

I know there has been some buzz lately about finding places for those who will be released to go, and/or just what to do with these people.

here  and also here.

He {Gates} said the Justice Department is still trying to determine how many of the 241 detainees at the military prison in Cuba will not be taken by other countries or put on trial, and there is no decision yet on where the remainder will go. Gates said that total would likely be between 50 and 100.

Pressed to give senators a hint on locations under consideration, Gates demurred. He added that while no final decision has been made on the fate of the current detention facility, he believes it will be “mothballed” once all the detainees there have been removed.

AND… lastly, one down, approx. 240 left to go?

al-Marri pleads guilty, convicted yesterday

Mr. Marri was moved to Justice Department custody after charges were filed by an Illinois grand jury.

The Obama administration hailed resolution of the Marri case as proof that the civilian court system is capable of trying dangerous terrorist suspects. That argument is aimed at bolstering the administration’s plans to close the prison at Guantanamo Bay, Cuba, despite opposition from critics who say the move could endanger the nation.

UPDATE: here’s a little more from the AP story on my yahoo…

Attorney General Eric Holder went further at a recent House hearing, saying the military commissions still could be used but “would be different from those that were previously in place.”

Although as many as one-third of the detainees will be released or sent to other nations for trial, Holder said the administration is considering how to prosecute the rest of them.

“We’ll be making, again, individualized determinations about where – for that group of people who should be tried, where they should be tried,” Holder testified. Among the options he described were “military tribunals that have significant changes made to the manner in which they would be conducted.”

The administration has never dismissed the possibility of using the tribunal system to try the suspected al-Qaida, Taliban and other foreign fighters swept up and ultimately held at Guantanamo after the Sept. 11 attacks.

But administration officials have said they hoped to try many in U.S. federal courts, relying on civilian prosecutors instead of on the military law.

Among the planned changes to the law, both officials said Saturday, would be limits on the evidence used against the detainees. Much of the evidence compiled against at least some of the detainees is classified and cannot be used in civilian courts without exposing the secret material.

Okay, I’ll be looking to see what else unfolds on this over the next few days…


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  1. Photobucket

    • Edger on May 2, 2009 at 20:54

    I mean the guy already got himself elected and he’s still got an 88% democratic approval rating, so obviously he’s doing all the “right” things. So what’s to complain about?


    Who needs rights anyway?

    They wouldn’t be in Gitmo if they weren’t guilty terrorists, right?

    Rule of law? Schmule of law.

  2. isnt the term “war crimes” kinda … redundant?

  3. It’s too late to determine guilt or innocence in anything resembling a fair court.  The idea that the president can establish a parallel system of “justice,” six years after the fact, that makes up its own rules as it goes along for the express purpose of convicting those it already presumes guilty–well, it makes the head spin.  I mean, this whole reasoning rests on the assumption that establishing guilt and innocence is simple and intuitive; the challenge is to give the appearance of a fair trial so that we can get on with the sentencing.  (Soviet Russia, anyone?)  But those damn liberals keep being sticklers for evidence and the rule of law, and an entire edifice of justice built up over hundreds of years.

    What passes for reasoning these days sends chills up my spine.

    • rb137 on May 2, 2009 at 23:42

    But I’m concerned that the method they use to investigate or bring perpetrators to trial will remove transparancy and plunge important details back into secrecy. A military court smells like such an attempt to me.

    • Edger on May 3, 2009 at 00:02

    Senator Barack Obama delivered this speech on the floor of the US Senate, in reaction to Senate passage of S. 3930, Military Commissions Act of 2006, which approved U.S. torture of detainees and strips Constitutional rights away from detainees.

    Senator Obama decries the placement of politics over human rights, and condemns S. 3930. He states, “This is not how a serious Administration would approach the problem of terrorism.


    All of us – Democrats and Republicans – want to do whatever it takes to track down terrorists and bring them to justice as swiftly as possible. All of us want to give our President every tool necessary to do this. And all of us were willing to do that in this bill. Anyone who says otherwise is lying to the American people.

    We could have fixed all of this in a way that allows us to detain and interrogate and try suspected terrorists while still protecting the accidentally accused from spending their lives locked away in Guantanamo Bay. Easily. This was not an either-or question.

    • Instead of allowing this President – or any President – to decide what does and does not constitute torture, we could have left the definition up to our own laws and to the Geneva Conventions, as we would have if we passed the bill that the Armed Services committee originally offered.

    • Instead of detainees arriving at Guantanamo and facing a Combatant Status Review Tribunal that allows them no real chance to prove their innocence with evidence or a lawyer, we could have developed a real military system of justice that would sort out the suspected terrorists from the accidentally accused.

    • And instead of not just suspending, but eliminating, the right of habeas corpus – the seven century-old right of individuals to challenge the terms of their own detention, we could have given the accused one chance – one single chance – to ask the government why they are being held and what they are being charged with.

    But politics won today.

    I’ve heard, for example, the argument that it should be military courts, and not federal judges, who should make decisions on these detainees. I actually agree with that.

    We’ve already had reports from the CIA and various generals over the last few years saying that many of the detainees at Guantanamo shouldn’t have been there – as one U.S. commander of Guantanamo told the Wall Street Journal, “Sometimes, we just didn’t get the right folks.”

    And we all know about the recent case of the Canadian man who was suspected of terrorist connections, detained in New York, sent to Syria, and tortured, only to find out later that it was all a case of mistaken identity and poor information.

    In the future, people like this may never have a chance to prove their innocence. They may remain locked away forever.

    And the sad part about all of this is that this betrayal of American values is unnecessary.

  4. secret military courts.

  5. 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.

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