US: Don't Revive Guantanamo Military Commissions

Reviving the discredited US military commissions to try Guantanamo detainees would result in needless litigation, delays, and flawed trials, Human Rights Watch said today. To ensure that terrorism suspects are tried promptly and fairly, the Guantanamo cases should be transferred to US federal courts.

Unnamed officials were quoted in the Washington Post saying that the Obama administration is preparing to restart the military commissions under new rules that would offer terrorism suspects greater legal protections. The new rules would reportedly prohibit the introduction of evidence obtained through coercion, tighten the use of hearsay evidence, and allow detainees greater choice in selecting defense lawyers than under existing military commission rules.

"The Obama administration shouldn't tinker with a fundamentally flawed system," said Stacy Sullivan, counterterrorism adviser at Human Rights Watch. "Reviving the military commissions would strip much of the meaning from closing Guantanamo."

As a presidential candidate, Barack Obama rightly called the Guantanamo military commissions "an enormous failure," Human Rights Watch said. In one of his first acts after taking office, President Obama suspended the military commissions for 120 days to give his administration time to study the detainees' cases and determine whether and how they should be prosecuted.

Although the proposed changes to the military commissions would be improvements, they do not address the fundamental concerns about the unfair nature of such tribunals, Human Rights Watch said. The very purpose of the commissions was to permit trials that would not be bound by the due process protections available to defendants in federal courts or courts martial.

Further, the previous set of military commissions was beset with problems, many of which resulted from starting a system from scratch. Defendants and their legal counsel could never be confident about the rules of procedure, which were ad hoc and untested, making the preparation of a defense difficult. For instance, the system in place to provide discovery to defendants left defense counsel without access to critical - and in some cases possibly exculpatory - evidence. Many issues became subject to myriad legal challenges, resulting in long and unnecessary delays.

The US federal courts, by contrast, have procedures that have withstood the test of time and litigation. Although critics assert that trials in US courts would jeopardize national security by exposing sensitive intelligence information, there are carefully crafted rules in place to protect identities and other sensitive information from becoming public. Sheikh Omar Abdel-Rahman, implicated in the 1993 World Trade Center bombing, and Zacarias Moussaoui, implicated in the 9/11 attacks, were tried and convicted in US federal courts.

"The US federal court system has a long history of providing fair trials in difficult cases, whereas the military commissions have a short history of botched cases," said Sullivan. "There is no good reason why the Guantanamo cases shouldn't be tried in federal courts."

In the seven years since the military commissions were announced, only three suspects have been prosecuted. The federal courts, by contrast, have tried more than 145 terrorism cases during this period.

Finally, even if the rules and procedures were radically reformed, the military commissions would not be able to overcome the taint of their past.

"After a turbulent history in which the commissions were once struck down by the Supreme Court and no fewer than six prosecutors resigned, it goes without saying that the attention on any trial by military commission would be on the fairness of the process rather than the gravity of the crime," said Sullivan "The victims of 9/11 deserve better."