The Obama administration will announce plans today to revive the Bush-era military commission system for prosecuting terrorism suspects, current and former officials said, reversing a campaign pledge to rely instead on federal courts and the traditional military justice system.
Word of the decision infuriated human rights groups, which argued that any trials under the system created by President George W. Bush would be widely viewed as tainted. They said President Obama was duplicating Bush’s mistakes.
The announcement would follow other moves by Obama that have disappointed his administration’s liberal allies but heartened Bush supporters, including his decisions to withhold photos depicting alleged abuse of detainees by U.S. soldiers and to retain the option of using a limited form of rendition, the practice of turning terrorism suspects over to other countries for questioning.
White House officials insisted Thursday that Obama was not overturning a campaign pledge. The president “never promised to abolish” military commissions, an administration official said. But Obama repeatedly called for change.
“It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice,” Obama said in August.
The administration still intends to prosecute in federal court some detainees being held at the military prison in Guantanamo Bay, Cuba, as Obama has pledged. But officials concluded that a small number can be tried only in military commissions, said one U.S. official familiar with the decision, speaking on condition of anonymity in advance of today’s announcement.
The administration also will outline major changes to the military commission system.
Gabor Rona, the international legal director of Human Rights First, said military commission trials were unlikely to be seen as legitimate forms of justice.
“Everyone knows the military commissions have been a dismal failure,” Rona said. “The results of the cases will be suspect around the world. It is a tragic mistake to continue them.”
But Charles Stimson, a former Bush administration official who oversaw detainee affairs at the Pentagon, applauded Obama’s proposal as one that would bring change to the military commission system while keeping it intact.
“It is a good start. The closer they get to courts-martial the better,” Stimson said. “They should learn from the mistakes the Bush administration made, then proudly defend the military commissions.”
Under the commission system, military officials have obtained three convictions in eight years, with charges pending against 21 suspects. Trial plans for more than 200 other detainees are undecided.
The Obama administration contends its revisions would improve the system by banning the use of any evidence obtained through coercion and restricting the use of hearsay evidence.
The rule changes also will give detainees more latitude in choosing lawyers, the U.S. official said.
But the revisions are widely viewed as cosmetic by critics in and out of government.
Today’s announcement will represent the president’s latest attempt to solve the problem of what to do with detainees being held at Guantanamo Bay.
In his first week in office, Obama ordered all military commission trials halted for 120 days and subsequently announced he would close Guantanamo within a year.
But the administration has put off thorny political and legal decisions. As officials began reviewing detainee cases and considering the ramifications of shifting trials to federal courts, they concluded that military commissions should remain an option.
“They took a look at all the cases,” the U.S. official said. “They compared and contrasted and decided the military commissions are the best way to go.”
But human rights advocates said nothing the administration could do to change the commissions would make them appear fair.
“I am afraid the stench of Guantanamo will remain,” said Tom Malinowski, the Washington advocacy director of Human Rights Watch. “Anything that goes by the name ‘military commissions’ will unfortunately be seen around the world as a continuation of the old system. It is the worst of possible worlds.”
The administration also will announce an additional 120-day delay in commission trials, preventing legal proceedings from resuming until at least mid-September, the U.S. official said. The administration also would consider further changes recommended by lawmakers.
Stimson said commissions would work best in relatively simple cases. He said the most complex cases, including the one against self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed, should be brought to federal court, where prosecutors are more experienced than military judge advocates general.
“Most JAGs are not qualified to try complex national security cases,” Stimson said. “I hope when commissions are reinstituted, the cases that go before them are . . . the easier cases.”
The Bush-era system was reviled not only by human rights advocates but by some military officials.
Three retired senior officers who served in key positions in the military justice system wrote to Obama on Thursday in an attempt to derail a revival of the commissions. They warned against an “erosion of international confidence” in U.S. justice.
“Our federal criminal justice system has capably handled hundreds of complex terrorism cases . . . rendering decisions that are widely respected as legitimate,” wrote retired Vice Adm. Lee F. Gunn, the former Navy inspector general; retired Rear Adm. John D. Hutson, the former Navy judge advocate general; and retired Brig. Gen. James P. Cullen, the former chief judge of the U.S. Army Court of Criminal Appeals.
Lawyers for detainees also criticized Obama’s decision to give military commissions another chance.
“The Obama administration came into office promising change and now looks to be repeating the mistakes of the Bush administration,” said Navy Lt. Cmdr. William C. Kuebler, who represents a young Canadian prisoner at Guantanamo. “I hope they won’t expose a child soldier like Omar Khadr to such a system.”
Times staff writer Carol J. Williams in Los Angeles contributed to this report.