Obama Reopens Debate on Military Trials of Detainees

Tuesday, 08 Mar 2011 06:14 PM

 

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(Corrects Chaffee’s title in 20th paragraph.)

March 8 (Bloomberg) -- President Barack Obama’s decision to order the resumption of military trials for detainees at the U.S. prison at Guantanamo Bay, Cuba, has reopened the debate about how to handle suspected terrorists who might be set free if given access to U.S. courts.

With an executive order, Obama codified a two-track approach, declaring that some detainees are eligible for terrorism trials in U.S. civilian courts while acknowledging that others will need to go before military commissions at Guantanamo. It’s an approach that is unlikely to quell the furor over a prison camp that he promised to close at the beginning of his presidency.

The actions will “broaden our ability to bring terrorists to justice, provide oversight for our actions and ensure the humane treatment of detainees,” Obama said yesterday in a statement accompanying the order.

According to administration officials, the president remains committed to closing the Guantanamo facility, contending that its existence serves as a recruiting tool for extremists. The White House will continue to oppose restrictions by Congress on the government’s ability to transport prisoners from Guantanamo to the U.S. for trial, the officials said.

Still, some members of Obama’s own party criticized the president for failing to close a facility he campaigned against.

‘Falls Far Short’

“The process outlined in the executive order falls far short of core constitutional values by failing to provide judicial review of cases considered by the review board or guaranteeing meaningful assistance of counsel,” Senator Patrick Leahy, a Vermont Democrat who is chairman of the Senate Judiciary Committee, said in a statement. “I am also concerned that these orders do little to bring us closer to closing the prison at Guantanamo Bay.”

Obama has struggled to craft a policy on the treatment of detainees who authorities believe are still allied with or were trained by al-Qaeda and yet can’t be tried in civilian courts because of legal or intelligence constraints. In a May 2009 speech, the president said that devising such a policy was “the single toughest issue that we will face.”

During his presidential campaign, Obama vowed that he would close the Guantanamo detention facility within a year of taking office -- a pledge he hasn’t been able to keep in the face of widespread opposition to bringing suspected terrorists onto U.S. soil. His action yesterday reopens a trial process at Guantanamo that he suspended two years ago.

Administration officials did not provide details on which cases would commence at Guantanamo, though they said new trials could start in the coming weeks.

New York Trial

In 2009, Obama and Attorney General Eric Holder announced a plan to bring Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11 terrorist attacks, and four alleged co-conspirators to trial in federal court in New York City, about a quarter-mile from the site of the World Trade Center towers. The administration began reconsidering that decision after New York Mayor Michael Bloomberg said he wanted the trial moved. The mayor is the founder and majority owner of Bloomberg News parent Bloomberg LP.

Last April, Holder said that the administration was still considering New York City as a site for a trial and that other locations were also under review. At the time, Holder said the administration hadn’t decided whether to hold the trial before a military commission or in a civilian court. In November, he said that the administration was “close” to selecting a trial location.

Both Are Needed

Holder said in a statement yesterday that the administration needs the ability to use both military commissions and federal courts “as tools to keep this country safe.” He previously referred cases for consideration for trial before military commissions.

In a separate statement, Defense Secretary Robert Gates said the government must keep the option of prosecuting suspected terrorists in U.S. federal courts.

“For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice,” he said. “To completely foreclose this option is unwise and unnecessary.”

In addition to garnering complaints from his own party, the president’s decision drew a different line of criticism from Republicans. Representative Howard “Buck” McKeon, chairman of the House Armed Services Committee, said Obama was repeating the mistakes of President George W. Bush’s administration by creating detainee policy “by executive fiat” rather than through legislation.

‘Baffling’ Decision

“It’s baffling to me that the White House, which prides itself on operating differently than its predecessor, would repeat the same mistakes by refusing to work with Congress to create a comprehensive plan for the long-term detention and prosecution of detainees at Guantanamo Bay,” the California Republican said in a statement.

Still, McKeon and House Judiciary Committee Chairman Lamar Smith, a Texas Republican, welcomed the decision to resume trials before military commissions.

“The next step is to abandon the ill-advised campaign promise to close Guantanamo Bay,” Smith said. In one of his first acts as president, Obama signed an order to close the prison within a year -- a deadline that lapsed following congressional opposition to trying suspects in civilian courts.

According to a fact sheet distributed with the executive order, the administration says it has revised the military commission process to include “a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment and a better system for handling classified information.”

‘Additional Process’

The military tribunals, combined with a new review mechanism, provide “additional process for detainees that have been languishing for years at Guantanamo,” said Devon Chaffee, advocacy counsel for the law and security program of Human Rights First, a Washington-based international human rights organization. “The problem of indefinite detention continues to pose a serious threat to fundamental rights.”

Obama’s directive says that if detainees no longer pose a threat to U.S. security, Gates and Secretary of State Hillary Clinton are to find a transfer location outside the U.S.

The detention facility at the U.S. naval base in Cuba was opened by the Bush administration after the Sept. 11, 2001, attacks. It currently houses 172 detainees, according to Tanya Bradsher, a Defense Department spokeswoman.

Geneva Conventions

In addition to issuing the executive order, the administration is seeking Senate ratification of Protocol II to the Geneva Conventions, dealing with civil war, to bring policy into line with current military practice and with those of other nations. It was originally submitted to the Senate by President Ronald Reagan in 1987.

The U.S. also is declaring that it will adhere to a section of another protocol setting out humane treatment and fair trial safeguards for detainees, according to the fact sheet.

“These steps we take today are not about who our enemies are, but about who we are: a nation committed to providing all detainees in our custody with humane treatment,” Clinton said in a statement.

--With assistance from Roger Runningen in Washington. Editors: Joe Sobczyk, Leslie Hoffecker

To contact the reporters on this story: Hans Nichols in Washington at hnichols2@bloomberg.net; Justin Blum in Washington at jblum4@bloomberg.net

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net

© Copyright 2014 Bloomberg News. All rights reserved.

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