Obama hasn’t fixed image of tribunals


President Obama’s decision Friday to revive military tribunals to try suspected terrorists will likely fail to erase the taint of illegitimacy over the courts despite efforts at reform, civilian and military legal experts said.

Obama outlined five rule changes aimed at bolstering defendants’ rights, including strict limits on the use of coerced evidence, tougher restrictions on the use of hearsay evidence and more latitude for defendants to choose their own lawyers.

Still, experts said the tribunals, also known as military commissions, are seen as so flawed that no amount of improvement will be able to dispel impressions that they are rigged to deliver convictions.


“I believe that the rules and procedures can be fixed so as to provide an actual fair proceeding. But what I don’t think they can salvage is the perception that the commissions are an illegitimate and unfair process,” said Air Force Maj. David Frakt, a Western State University law professor who represents two prisoners held at the military prison at Guantanamo Bay, Cuba.

During the presidential campaign, Obama himself criticized the commissions as an “enormous failure” and said he would prefer to try detainees in federal courts or in traditional military courts.

His turnaround has surprised some experts, given the years of discussions over how hard it would be to fix the system.

“To make the commissions truly fair and equitable, they would have to be so fundamentally reconfigured that I just don’t really understand how they can go forward,” said Amos N. Guiora, a national security law professor at the University of Utah.

Administration officials said they are still mulling over other reforms to the tribunal system, although White House Press Secretary Robert Gibbs declined to detail them.

Gibbs defended the administration’s decision to resume the tribunals, saying that “first and foremost, the president of the United States is going to do what he believes is in the best security interests of the people of the United States.”


White House Counsel Greg Craig held a conference call with human rights leaders to explain the decision, but opponents said they remain concerned.

“I came away unconvinced that the case has been made for military commissions,” said Elisa Massimino, executive director of Human Rights First, noting that the case-by-case evaluation Obama ordered on the 240 Guantanamo detainees has yet to be completed.

Obama has so far omitted any mention of where the resumed tribunals might take place. He has ordered the Guantanamo detention facility closed by Jan. 22, 2010, and the detainees who can be put on trial moved to U.S. locations. Those for whom there is no case must be released to their home countries or other states willing to receive them.

John B. Bellinger III, State Department legal advisor under President George W. Bush, said federal requirements for speedy trials, Miranda warnings and access to counsel probably prompted Obama to keep the military tribunals.

With the tribunals, “defendants have fewer rights, and it’s easier to get convictions,” Frakt said.

Despite that, the system has actually failed to produce many convictions. Persistent court challenges to the system have meant that only three cases were tried at Guantanamo Bay, while U.S. civilian courts have convicted more than 100 accused terrorists.


In the most high-profile terrorism cases, civilian courts have delivered guilty pleas, convictions and long sentences for defendants, including onetime accused “dirty bomb” plotter Jose Padilla, thwarted hijacker Zacarias Moussaoui and Al Qaeda agent Ali Saleh Kahlah Marri.

“In practice, the military and civilian systems have been converging anyway because military judges have been trying to prove they can be fair, and civilian judges and juries are trying to prove they can be tough,” said Tom Malinowski, Washington advocacy director for Human Rights Watch.

Cmdr. Glenn M. Sulmasy, a national security law professor at the U.S. Coast Guard Academy, suspected that the new tribunals are only a stopgap to get some trials going while work continues on creating a new court designed to try suspected members of terrorist organizations like Al Qaeda.

“The best solution would be to create a unique system. I think they will at least be considering it” while reworking the commissions process, said Sulmasy, author of “The National Security Court System: A Natural Evolution of Justice in an Age of Terror.”