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Military Trials To Resume For Guantanamo Detainees


There will be some high-profile cases coming out of Guantanamo. When he came to office two years ago, President Obama promised to close the military prison at Guantanamo Bay, but politics got in the way. Congress barred the White House from bringing terrorism suspects onto American soil, and lawmakers made it harder to send detainees to third countries, as well.

NPR's Carrie Johnson reports on the only part of the process that's moving forward: trials before military commissions.

CARRIE JOHNSON: The Obama administration is preparing to relaunch military trials for Guantanamo detainees in the next several weeks, and that isn't going over well in the human rights community. Hina Shamsi works at the American Civil Liberties Union.

Ms. HINA SHAMSI (American Civil Liberties Union): We think that it is a major step backwards and a blow to efforts to restore the rule of law to Guantanamo. Because trying Guantanamo detainees in the military commission system is not going to achieve justice or certainty, because it's a system that is designed to ensure convictions, not fair trials.

JOHNSON: Glenn Sulmasy writes about the military system, and he says there's no question that it's fair.

Mr. GLENN SULMASY (Author): I think it's eminently fair. We should all be proud of our military men and women. I think they have so far been incredible in terms of what - you look at what the punishments given out for those brought before military commissions already.

JOHNSON: But even Sulmasy says he's worried about the image of restarting military trials at Guantanamo, mostly about how those images will appear to the rest of the world.

Mr. SULMASY: I think the actual process in the military commission - and the military commissions as a matter of law, are lawful, in accordance with international law and domestic law. As a matter of policy, I'm not certain that they haven't been tarnished irrevocably.

JOHNSON: Moving forward with military tribunals against some Guantanamo detainees has always been part of the White House plan. President Obama said in a May 2009 speech at the National Archives that he'd use both military commissions and civilian courts. But the civilian court plan has fallen by the wayside for now, putting all the attention on the military justice system. And experts say there are major challenges to trying detainees in that system.

One of the first new cases will likely involve Abd al-Rahim al-Nashiri, who's accused of bombing the USS Cole. And scholar Eugene Fidell says it will pose a big question: How will military courts handle evidence tainted by harsh interrogations?

Professor EUGENE FIDELL (Senior Research Scholar, Yale Law School): Military commission judges are likely to be just as persnickety about evidence as federal judges. I must say I think that's going to be a very serious issue in these cases, particularly when evidence is offered that al-Nashiri, for example, was subject to waterboarding.

JOHNSON: Experts say the law that governs military tribunals is untested - so untested that it's not clear if detainees have basic rights, like the right to question intelligence agents who want to remain undercover. Under the U.S. Constitution, the right to challenge witnesses is allowed under what's called the Confrontation Clause. But Fidell says no one knows how far that extends in the military system.

Prof. FIDELL: That's the real point. It's that the government will be prevented from offering evidence that would violate the Confrontation Clause, because you have a right under the Constitution to confront the witnesses against you. And that, at times, prevents the submission of hearsay evidence.

JOHNSON: And there's another huge issue looming over the military justice system: How it will handle cases where a defendant could be sentenced to death. Experts say there hasn't been a military execution since 1961. That's when a U.S. soldier was court-martialed and put to death after raping and trying to kill a child in Austria. And there hasn't been a death penalty to come out of a military commission since World War II.

Carrie Johnson, NPR News, Washington.

(Soundbite of music) Transcript provided by NPR, Copyright NPR.

Carrie Johnson is a justice correspondent for the Washington Desk.

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