WASHINGTON - In an apparent reversal, President Barack Obama is reviving the Bush
administration's much-criticized military tribunals for Guantanamo Bay
detainees, shocking those who expected the president to end them
CBS News correspondent Kimberly Dozier reports that the
president says these will not be your Bush-era tribunals, promising a
new system that guarantees more legal rights for detainees.
Mr. Obama said the changes were designed to give defendants
stronger legal protections, such as a ban on evidence "obtained through
torture, or by using cruel or degrading interrogation methods," like
waterboarding; limiting use of hearsay evidence; granting the accused
more say in who represents them; and protecting detainees who refuse to
testify from legal sanctions.
But his action was almost instantly denounced by critics who called the new tribunals "Bush Lite," reports Dozier.
During his presidential campaign, Mr. Obama was highly critical of the commissions used by the Bush administration.
"By any measure, our system of trying detainees has been an enormous failure," he said last June 18.
And one of his first actions as president was setting in motion the closing of Guantanamo Bay prison within 12 months.
Re-opening these military tribunals may also delay the closing of Guantanamo, says Dozier.
The earliest the trials of 13 defendents (9 of whom are charged with
helping orchestrate the September 11 terror attacks) can resume is
September. That would give prosecutors about four months to finish
before the end of the year, because these military tribunals cannot be
held back in the United States.
The rest of the 241 Guantanamo detainees will either be released,
transferred to other countries, tried in civilian U.S. federal courts
or, potentially, held indefinitely as prisoners of war with full Geneva
"This is the best way to protect our country, while upholding our deeply-held values," Mr. Obama said in a three-paragraph White House statement.
The administration said he was not embracing the Bush-era system because it would be so significantly changed.
Human rights groups disagreed.
"In one swift move, Obama both backtracks on a major campaign
promise to change the way the United States fights terrorism and
undermines the nation's core respect for the rule of law," said Amnesty International executive director Larry Cox.
"As a constitutional lawyer, Obama must know that he can put
lipstick on this pig - but it will always be a pig," said Zachary
Katznelson, legal director of Reprieve, a London-based legal action charity that represents 33 Guantanamo detainees.
Critics called it a return to a second class system of justice for cases without enough evidence for a federal trial.
David Remes, a attorney for 18 detainees, said, "It's a prosecutor's dream, it's a defendent's nightmare."
The White House disagrees: "The notion that this is the same
vehicle is simply, it's simply not true," said Press Secretary Robert
Mr. Obama's announcement was greeted more warmly on Capitol Hill,
where he will need broad support to quickly push through tribunal
changes. The White House hopes to do so before mid-September, when a
new 120-day freeze the president put on the cases Friday runs out.
The Democratic chairman of the Senate Armed Services Committee,
Carl Levin, D-Mich., called the changes "essential in order to address
the serious deficiencies in existing procedures." Senate GOP Leader
Mitch McConnell said the announcement was an "encouraging development."
"It's a difficult legal situation, and I think this is really the
only rational choice to make," said Sen. Sam Brownback, R-Kan., who
opposes bringing detainees to the military's maximum security prison
located in his state.
The tribunal system was established after the military began taking
detainees from the battlefields of Afghanistan in late 2001. But the
process immediately and repeatedly was challenged by human rights and
legal organizations for denying defendants rights they would be granted
in most other courts.
As a senator, Mr. Obama voted for one version of the tribunal law
that gave detainees additional rights, but then voted against the more
limited 2006 legislation that ultimately became law.
Friday's changes restore some of those rights.
Veterans of the Bush White House say Mr. Obama faced the same hard
choice their boss did: Finding a way to keep dangerous men in jail.
"Call it a war on terror, call it what you like, but if there is an
ongoing fight, then the openness, the due process that is normally
attached to a criminal legal process is difficult," said CBS News national security analyst Juan Zarate.
The latest delay, however, means Mr. Obama could face an
uncomfortable choice as the clock runs out on his self-imposed January
2010 deadline to close Guantanamo.
His administration will have only four months to finish the nine
trials before then, or risk moving the cases to the United States if
they are still under way. If that happens, the detainees would be given
even greater legal rights than they have at Guantanamo - and more than
Mr. Obama wants to give.
Asking Congress to change the 2006 commissions law could create
longer delays. Lawmakers, leery that the detainees could be brought to
the U.S., already have held up funding for closing the prison until the
White House outlines details of how it would happen.
President Obama could roll back the January 2010 deadline, which he
imposed on his second day in office. That could throw in doubt his
campaign promise to shut down the prison and, at the least, highlight
his struggle to reverse Bush-era national security policies that
damaged America's image worldwide and stoked recruitment among
Clive Stafford Smith, who represents several current and former
detainees, was surprised that the Obama administration plans to restart
the trials at Guantanamo instead of elsewhere. "There is zero chance
that the military commissions could be over by January, so that cannot
possibly be the plan," he said.
Navy Lt. Richard Federico, who represents two Guantanamo detainees
charged before the military commissions, including alleged 9/11 plotter
Ramzi bin al Shibh, also doubted cases could be completed by January.
Litigation over the legality of the new rules "will certainly incur
additional delay," Federico told The Associated Press.
The White House says this is not a departure from campaign
promises. They said they always had a problem with the way tribunals
were carried out, not the idea of military commissions overall.
Don Baer, who served as Director of Strategic Planning and
Communications in the Clinton White House, said Mr. Obama is "not
technically" breaking a campaign promise.
"He's modifying where he was back last August," Baer said on CBS' The Early Show Saturday Edition. "It's an indication that governing is a more complicated and complex situation ... than campaigning is.
"I suspect it's a change of direction that will help the president
because it underscores he's governing in a way that is going to keep
the country safer."
Baer suggested that presidents get more information about security
threats than do presidential candidates, and so Mr. Obama was simply
acting on what he knew. "Given what he knew at the time, he was being
responsible. Given what he knows today, he's being even more
Todd Harris, who was John McCain's communications director during
his 2000 White House run, said Mr. Obama was simply being realistic and
applauded his decision.
"But let's be honest here: this is a reversal," he said on The Early Show.
"He campaigned as someone who was going to close the book on Bush-era
terrorism techniques, but seems to be writing a new chapter. It's not
just the military commissions; it's continued support for the Bush
administration's warrantless wiretap programs, keeping Guantanamo Bay
open, refusing to release the photos of depicted abuse.
"Time after time, as Don said, the administration is finding that
it's a lot harder to actually implement these campaign promises than it
was to make them back in the campaign."