Military commissions to return, with new rules

WASHINGTON – The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay to try suspected terrorists under new rules that would offer them greater legal protections, government officials said.

The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony, and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly.

The military commissions have allowed the trial of suspected terrorists in a setting that favors the government and protects classified information, but they were sharply criticized during the administration of President George W. Bush.

“By any measure, our system of trying detainees has been an enormous failure,” then-candidate Barack Obama said in June 2008.

In one of its first acts, the Obama administration obtained a 120-day suspension of the military commissions, which will expire on May 20. Human rights groups had interpreted the suspension as the death knell for military commissions and expected the transfer of cases to either military courts-martial or federal courts.

Officials said Friday that the Obama administration will seek a 90-day extension of the suspension as early as next week. It would subsequently restart the commissions on American soil, probably at military bases, according to a lawyer briefed on the plan.

“This is an extraordinary development and it’s going to tarnish the image of American justice again,” said Tom Parker, a counterterrorism specialist at Amnesty International.

A White House official said no final decision had been made, and one source involved in discussions said the plan awaits Obama’s approval.

The administration’s extension would allow it to meet a requirement to provide Congress with 60 days’ notice of any rule changes in the way the commissions function, officials said.

Congress established the commissions in 2006 after the Supreme Court struck down a system of military tribunals created by the Bush administration.

The administration’s plan to reinstate the commissions with modifications reflects the fear that some cases would fail in federal courts or in standard military legal settings.

“It looks a lot more difficult now than it did on Jan. 20,” said one government official.

Civil liberties advocates, who insist federal courts can handle terrorism cases, vowed to challenge any new process.

“We’ll litigate this before they can proceed, absolutely,” said Anthony Romero, executive director of the American Civil Liberties Union.

“Any effort to tinker with military commissions would be an enormous mistake. There is no way to fix a flawed process that has not rendered justice.”