Backgrounder: Closing Guantanamo (Bruno / NYT)

[struggle4progress]

By GREG BRUNO
Published: February 13, 2009

... Military Commission: Such commissions were created to try "unlawful enemy combatants" and legalized under the Military Commissions Act of 2006. In particular this system sought to limit detainees' ability to challenge their detention via habeas corpus petitions (a ruling that was later overturned); allow hearsay evidence into trial; and keep the death penalty as an option. Approximately twenty detainees are currently facing charges before these commissions, according to the Congressional Research Service. Some legal scholars and human rights activists have criticized them as unconstitutional. Military Court-Martial: While court-martial proceedings have not been used to try detainees, legal experts say the Obama administration would have the authority to charge suspects under the Uniformed Code of Military Justice (UCMJ). Some, including legal experts with the Congressional Research Service, suggest the current UCMJ structure might run counter to constitutional protections such as the right to a speedy trial. Federal Civilian Court: Obama has called for an examination of whether detainees could be prosecuted in federal civilian courts, an option some legal advocates have pushed for years. A September 2008 assessment (PDF) by the Center for Strategic and International Studies, a Washington think tank, says federal courts have a proven track record in trying international terrorism cases: 145 convictions since 2001, versus just two for Guantanamo military commissions. Yet even this option has potential legal hurdles, experts say, notably statute of limitation concerns. Concerns about hearsay evidence and coerced evidence gathered during detention could also complicate future proceedings. A top Bush administration official told the Washington Post in January 2009 that she refused to recommend charges for a Saudi national accused of plotting the Sept. 11, 2001 attacks because of concern evidence was gathered during torture. CFR's Waxman says the Obama administration "is likely to break from the Bush administration" and pursue the federal court option. National Security Court: Lastly, some legal experts have backed the creation of a new hybrid court combining elements of civilian and military systems. A Wall Street Journal editorial says such a system would "allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions." Georgetown Law professor Neal K. Katyal, who has been tapped to serve as a principal deputy solicitor general in the Justice Department, says while such a system must be crafted with caution, it may be the best option. But Deborah Colson of Human Rights First warns (NYT) that such a system would ensure "fewer due process protections than those guaranteed in ordinary criminal courts," and would create a "state-side replica of the Guantanamo legal regime" ... http://www.nytimes.com/cfr/world/slot1_20090212.html