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Obama to Revive Military Trials for Gitmo Detainees

May 15, 2009 at 6:20 PM EDT
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President Obama plans to restart Bush administration-era tribunals for Guantanamo detainees, but offer the men new legal protections. NewsHour senior correspondent Ray Suarez reports.

RAY SUAREZ: President Obama today revived the use of military trials for detainees held at the Guantanamo Bay prison in Cuba. The decision to modify, but maintain the military commissions stands in stark contrast to the president’s prior statements about the process.

U.S. PRESIDENT BARACK OBAMA: As a democracy, we are going to pay attention, we are going to hold folks accountable…

RAY SUAREZ: During the campaign, Mr. Obama called the Bush administration’s approach to trying alleged terrorists and enemy combatants “an enormous failure.”

But in a statement today, the president said he had supported the tribunals in some cases and he sought to “restore the commissions as a legitimate forum for prosecution while bringing them in line with the rule of law.”

ROBERT GIBBS, White House press secretary: The president of the United States is going to do what he believes is in the best security interests of the people of the United States.

RAY SUAREZ: White House press secretary Robert Gibbs was asked to reconcile the president’s decision with his oft-stated desire that the whole process be brought within the established military or federal court system.

ROBERT GIBBS: I think if you look back at all these statements, Jake, the president has been consistent in his views on this issue and been consistent on what was lacking in order to ensure justice, in order to ensure protection, and, most of all, to ensure that this process goes forward with — and doesn’t see repeated legal stalls in going through the court system.

I don’t think this is a system that works in any way, shape or form for the American people.

JOURNALIST: Is he saying we’re going to live with this law with tweaks?

ROBERT GIBBS: The notion that this is the same vehicle is simply — it’s simply not true.

Changes affect 20 cases

RAY SUAREZ: The changes, which affect about 20 cases, include severe restrictions on hearsay evidence, greater ability for detainees to choose legal counsel, no reprisals for refusing to testify, and no use of evidence obtained through torture.

That last prohibition could complicate the trial of at least one high-profile detainee. The self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, was repeatedly subjected to brutal interrogation tactics, including the controlled drowning technique known as waterboarding.

The military tribunal system has been controversial and heavily litigated since its initial creation by executive order during President George W. Bush's first term.

In 2005, the Supreme Court invalidated the tribunals. Congress later passed a redesigned system. Then-Senator Obama voted against that bill in 2006.

EUGENE FIDELL, Yale University: My proposal would be that no case of any kind should go before a military commission unless the attorney general of the United States can certify and explain why it cannot be tried in federal district court.

RAY SUAREZ: Eugene Fidell is an attorney specializing in military law. He says the decision today is an improvement but to a system that ought to be scrapped.

EUGENE FIDELL: The federal courts enjoy the confidence of people all around the world, and they have demonstrated in case after case after case an ability and willingness to prosecute terrorists. So if that's the goal and if we have a way to do that that will have people around the world saying, "What a good job. This is in keeping with American values. This is what we look up to," that's what should be done.

Guantanamo detainee released

RAY SUAREZ: Fidell says European governments slowly warming to the notion of taking in Guantanamo prisoners may stop that process if the commissions are reconstituted.

And in a related development, a Guantanamo detainee was released today. Lakhdar Boumediene, an Algerian, left the U.S. detention center in Cuba. He's expected to live with relatives in France.

It was Boumediene's case that led the Supreme Court of the United States to rule that habeas corpus protections extend to the military trials. Habeas corpus is the centuries-old legal right to challenge one's arrest.

BRIG. GEN. THOMAS HEMINGWAY (Ret.), former legal adviser, Office of Military Commissions: Well, I think it's very important to remember that this is a war.

RAY SUAREZ: General Thomas Hemingway was the legal adviser to the Pentagon's Office of Military Commissions. He says that today's actions will improve a necessary process.

BRIG. GEN. THOMAS HEMINGWAY: It is not a law enforcement issue, and that makes all the difference in the world. If this were a law enforcement issue, much as the event in Oklahoma was, that was clearly a domestic crime.

Now, the problem is generated by the fact that, when the Geneva Conventions were originally drafted, nobody had any idea that a non-state actor would have the capability to wage war on an international scale, and so it wasn't addressed.

RAY SUAREZ: Today's changes will not be instituted for some time. The entire tribunal system was suspended by the president in January when he signed an executive order ordering the closing of Guantanamo by next January.