Military Trials to Resume at Guantanamo

By Kenneth Jost
Associate Editor
      Faced with congressional resistance to closing the Guantanamo Bay prison camp, President Obama has announced new steps to resume military trials for detainees and to create a military-civilian review board for prisoners being held there without trial.
      The White House said on Monday (March 7) that the Pentagon will lift the suspension imposed in January 2009 on referring new cases for prosecution before so-called military commissions. Administration officials said new procedures established by a law passed in 2009 make the commissions “a more credible and effective tool for justice.”
      Obama also issued an executive order creating a six-member board to review cases of detainees who are not being brought to trial. Detainees can continue to be held if the predominantly civilian board finds that detention is “necessary to protect against a significant threat to the security of the United States.”
      The moves bow to the reality that Obama’s post-inauguration pledge to close Guantanamo within a year is now, two years later, unachievable in the foreseeable future. While under Democratic control, Congress last year added provisions to the Defense Department authorization bill that prohibit bringing Guantanamo detainees to the United States for civilian trials and impose difficult-to-meet conditions on transferring detainees to other countries.
      Obama reluctantly signed the measure into law but said he would urge Congress to repeal the restrictions. In his statement on Monday, Obama reiterated his support for using civilian trials against some suspected terrorists. “The American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates,” Obama said.
      The moves drew favorable reaction from some experts but sharp criticism from the American Civil Liberties Union. “Today’s executive order institutionalizes indefinite detention, which is unlawful, unwise and un-American,” said ACLU Executive Director Anthony Romero.
      Guantanamo held 240 prisoners when Obama took office on Jan. 20, 2009; today, there are 172 prisoners. The administration has succeeded in transferring 67 prisoners to other countries, but only by dint of rigorous diplomatic arm-twisting. One detainee died in custody.
      The Pentagon funding measure prohibits future transfers unless the secretary of defense certifies that the receiving country meets specified security conditions. A substantial number of the remaining detainees are Yemenis; the administration was unable to reach security agreements with the Yemeni government even before the current unrest.
      The Bush administration established the framework for trying Guantanamo detainees before military tribunals, but with legal challenges and logistical difficulties it won convictions in only three cases: two by guilty pleas and one after trial. The Obama administration has won guilty pleas in two additional cases.
      The White House said military commissions “should proceed in cases where it has been determined appropriate to do so.” One of the cases likely to be among the first to come to trial is the prosecution of Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole. Al-Nashiri, a Saudi of Yemeni descent, has been imprisoned at Guantanamo since 2006.
      Administration officials refused to comment on plans for trying Guantanamo’s highest-profile prisoner: Khalid Sheik Mohammed (KSM), the self-proclaimed mastermind of the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Attorney General Eric Holder announced plans in November 2009 to try Mohammed and four co-conspirators in a federal court in New York City, but the plan provoked a public and political backlash and has been on hold ever since.
      Officials acknowledged the congressional restrictions would bar a civilian trial in the United States at present. A White House fact-sheet termed the restrictions “a dangerous and unprecedented challenge to Executive authority” and said the administration would urge Congress to repeal them.
      A Justice Department task force concluded last year that 48 detainees should continue to be held at Guantanamo but were “not feasible for prosecution.” The executive order Obama issued on Monday creates a Periodic Review Board for those cases to include representatives of the State, Defense, Justice and Homeland Security departments; the directorate of National Intelligence; and the Joint Chiefs of Staff.
      Detainees will be entitled to a hearing before the board within one year, assisted by a government-appointed “personal representative.” If the board determines detention is warranted, a “file review” is to be conducted every six months and another full review in three years. Deborah Pearlstein, a law professor formerly with the advocacy group Human Rights First, called the procedure “a positive development.”

      For background, see "Closing Guantanamo," CQ Researcher, Feb. 27, 2009 (subscription required).