Obama team recognizes the benefits of military commissions

NY Times:

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.

Continuing the military commissions in any form would probably prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system.

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.

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.”

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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.

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.

The administration is likely to make it more difficult for prosecutors to admit hearsay, while not excluding it entirely, the lawyers said. The hearsay issue is central to many Guantánamo cases because they are based on intelligence reports and detainees may never be permitted to cross-examine the sources of those reports.

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This is the only rational way to try these guys if you are going to do it. They are not entitled to the rights of Americans to begin with and they are getting for more than they deserve, My preference would still be to just keep them at Gitmo until the end of the war for the most part although a guy like KSM deserves death by juju.

The terrorist rights wackos should be ignored. They have mostly tried to thwart justice anyway. Just as we found with al Marri today, these guys were all for mass murder of Americans for Allah and were willing to do anything to accomplish that objective. If he gets the maximum sentence it will be too little.

The main concern in presenting evidence is that we not provide them with the sources and methods of gathering intelligence on al Qaeda. If we do it will be in the hands of the ones who have not been captured yet and it will make it easier for them to pursue their mass murder of Americans. That is exactly what happened after the lawfare trials of the 90's, especially the African embassy trials.