Daily Mail | May 15, 2009
By David Gardner

President Barack Obama was today accused of a major U-turn after he decided to keep the controversial military commissions set up by George Bush to prosecute terror suspects.

The surprise White House announcement reversed Mr Obama’s campaign pledge to rely on America’s conventional criminal court system.

It was the president’s second U-turn this week after he changed his mind and pledged to try and block the court-ordered release of damning photographs showing US soldiers abusing prisoners.

Last night’s move led to an outcry from shocked human rights campaigners who thought Mr Obama intended to dismantle the terror tribunals after calling them ‘an enormous failure’ during last year’s presidential campaign.

In one of his first acts as president, Mr Obama obtained a 120-day suspension of the military commissions established at Guantanamo Bay in Cuba that was seen as the death knell for one of the Bush administration’s key platforms in the war on terror.

He is expected to ask for an additional 120-day delay in nine pending cases to revamp the trials.

Mr Obama is asking US Congress to expand the rights of defendants to ban evidence gained from torture or cruel treatment, limit the use of hearsay testimony and give detainees more rights to pick their own lawyers.

He wants some defendants to face trial in the civilian court system.

But aides said the president now plans to retain the Bush administration’s military commissions to try a smaller number of about 20 terror suspects.

The White House insisted that Mr Obama had not gone back on his word.

Aides maintained the president ‘never promised to abolish’ military tribunals.

The president ‘has always envisioned a role for commissions, properly constituted,’ added the official.

But critics said he repeatedly called for change.
‘Everyone knows the military commissions have been a dismal failure,’ said Gabor Rona, the international legal director of Human Rights First.

‘The results of the cases will be suspect around the world. It is a tragic mistake to continue them,’ he added.

‘It’s disappointing that Obama is seeking to revive rather than end this failed experiment,’ said Jonathan Hafetz, a lawyer for the American Civil Liberties Union.

Navy Lt Commander William Kuebler, who represents a Canadian inmate at Guantanamo, said: ‘The Obama administration came into office promising change and now looks to be repeating the mistakes of the Bush administration.’

Even with the additional rights being proposed by Mr Obama, defendants would not get the same protection at a military commission hearing as they would under the civilian system. Hearsay evidence, for example, is banned in American courts.

Under the Bush administration tribunals, hearsay testimony was allowed unless a defendant could prove it unreliable.

Mr Obama plans to shift the burden to make the prosecution liable to prove its reliability.

The Bush tribunals won three convictions in eight years, with charges pending against 21 suspects. Trial plans for more than 200 other Guantanamo detainees are still undecided.

The president’s decision came as he faces increasing pressure to come up with a plan for dealing with detainees at Guantanamo Bay, which he has promised to close by next January.

Mr Obama was already under fire from civil rights groups for his decision on Wednesday to bow to the advice of his military chiefs and block the release of the photos detailing the US abuse of prisoners.

After initially saying he could go along with a court order to release the pictures, he said he was ‘uncomfortable’ with the decision because it could put US troops in Iraq and Afghanistan at more risk.

Republican Senator Lindsey Graham called Obama's decision to revamp the tribunals a step toward strengthening U.S. detention policies that have been derided worldwide.

'I continue to believe it is in our own national security interests to separate ourselves from the past problems of Guantanamo,' said Graham, who has been working with the administration on issues related to detainees.

'I agree with the president and our military commanders that now is the time to start over and strengthen our detention policies. I applaud the president's actions today.'

Jonathan Hafetz, a national security attorney at the American Civil Liberties Union, said: 'It's disappointing that Obama is seeking to revive rather than end this failed experiment. There's no detainee at Guantanamo who cannot be tried and shouldn't be tried in the regular federal courts system.

'Even with the proposed modifications, this will not cure the commissions or provide them with legitimacy. This is perpetuating the Bush administration's misguided detention policy.'
Obama, as a senator in 2006, was among critics who called the tribunal system - changed that year from an earlier, more lenient version after calls from then-President George W. Bush - a violation of U.S. law because of the limits on detainees' legal rights.

He voted for the earlier version of the tribunals plan that also had the support of four moderate Republicans on the Senate Armed Services Committee. But he opposed the system that Congress ultimately approved, calling it 'sloppy.'

'We have rushed through a bill that stands a good chance of being challenged once again in the Supreme Court,' Obama said in a September speech on the Senate floor. 'This is not how a serious administration would approach the problem of terrorism.'

Later, on the presidential campaign trail in February 2008, Obama described the Guantanamo trials as 'a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges.'
Three Guantanamo detainees have been convicted in the tribunals so far, a government official said Thursday.

The legal system is expected to try fewer than 20 of the 241 detainees at the U.S. naval detention center at Guantanamo Bay, Cuba. Thirteen detainees - including five charged with helping orchestrate the September 11, 2001, attacks - are already in the tribunal system.

The White House may seek additional changes to the military commissions law over the next 120 days, but it was not immediately clear what they could include.

Those detainees not going to trial would either be released, transferred to other nations or tried by civilian prosecutors in U.S. federal courts, an official said.

It's also possible that some could continue to be held indefinitely as prisoners of war with full Geneva Conventions protections, according to another senior U.S. official.

The decision to restart the process puts the administration in a race against the clock to conclude commission trials before the Navy prison is closed, by January 2010.

If the trials are still going on, the detainees might have to be brought to the United States, where they would receive even greater legal rights.

Since Obama's executive order to close the prison, Republicans have focused on the issue of where the detainees would go - and the new Democratic administration's lack of a plan to deal with them.

In his Thursday statement, Senator Graham said he would not support allowing detainees to be released into the United States.

'I believe a comprehensive plan should be in place before Guantanamo is closed,' he said.

Like many little girls, Sasha Obama looked thrilled when her father returned home from a day at the office.

Of course, most parents don't live in the White House and complete their commute in a helicopter.

The president's younger girl, seven, waved enthusiastically as Mr Obama strode down the steps of the chopper.

He smiled broadly, and waved back.