Military Tribunals for Guantanamo Detainees

President Obama has decided to reinstate military tribunals for Guantanamo detainees.

Two senior administration officials outlined several of the rules changes, which will be carried out by executive authority, to The Associated Press on Thursday night. They include:

_Restrictions on hearsay evidence that can be used in court against the detainees.

_A ban on all evidence obtained through cruel, inhuman or degrading treatment. This would include statements given from detainees who were subjected to waterboarding, a form of simulated drowning.

_Giving detainees greater leeway in choosing their own military counsel.

_Protecting detainees who refuse to testify from legal sanctions or other court prejudices.

The White House may seek additional changes to the military commissions law over the next 120 days, but it was not immediately clear Thursday what they could include.

The return of the tribunals is troubling from a human rights perspective because of the due process concerns they create.

"It's disappointing that Obama is seeking to revive rather than end this failed experiment," said Jonathan Hafetz, a national security attorney at the American Civil Liberties Union. "There's no detainee at Guantanamo who cannot be tried and shouldn't be tried in the regular federal courts system. Even with the proposed modifications, this will not cure the commissions or provide them with legitimacy. This is perpetuating the Bush administration's misguided detention policy."

Critics of the Guantanamo commissions, including Obama as a senator in 2006, called them a violation of U.S. law because of the limits on detainees' legal rights. Pushed by President George W. Bush, Congress created the current tribunal system in 2006 after scrapping an earlier version that gave detainees additional rights.

Obama voted for the earlier version of the tribunals plan that also had the support of four moderate Republicans on the Senate Armed Services Committee. But he opposed the system that Congress ultimately approved, calling it "sloppy."

"We have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court," Obama said in a Sept. 28, 2006, speech on the Senate floor. "This is not how a serious administration would approach the problem of terrorism."

Later, on the presidential campaign trail in February 2008, Obama described the Guantanamo trials as "a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges."

Marc Ambinder makes a useful point.

This point has been overlooked in the first round of coverage about President Obama's decision to use military commission tribunals for some of the Gitmo detainees: according to an administration official, most of the remaining 241 detainees will be afforded Article III trials -- that is, fully-fledged, regular trials, unless they're released without trial. Some of them might be shunted to a newly-created national security court, if the administration and Congress team up to create one. The remaining detainees -- presumably dangerous folks who the administration wants to detain but who haven't had the right type of evidence accumulated against them -- will be tried by the military. The AP says about 20 military commissions will be held.

On first read, then, the military commissions are being used as a way to justify indefinite detention -- to create a means through which habeas corpus rights for these prisoners can be exercised (but not fully granted) and then exhausted.

One question: it's totally true that the criminality, so to speak, of the Gitmo detainees ranges from innocent to murderous. Where does the administration draw the lines -- release, Article III, commission -- and in doing so, do the lines appear capricious enough to provoke the ire of the regular judicial system and Congress?