Guantanamo Tribunals To Resume Under New Rules

SCOTT SIMON, host:

As we just mentioned, the White House is reviving military tribunals, specifically a controversial trial system designed solely for a handful of prisoners at Guantanamo Bay, Cuba. The tribunals have been on hold since January, while the new administration reviewed the legal process. Now they're back with a few tweaks. NPR's Jackie Northam reports.

JACKIE NORTHAM: The tribunals, known as military commissions, were plagued by widespread criticism, delays and legal challenges long before the first detainees stepped into a Guantanamo courtroom five years ago. The commissions were seen by defense lawyers as patently unfair and biased towards the military prosecution.

Now the Obama administration has ordered some key changes to the rules; among them, any evidence collected through torture or abuse will be banned and there will be restrictions on hearsay evidence. The White House may make further rule changes in the coming months.

White House spokesman Robert Gibbs says President Obama believes the new rules will give the detainees better protection in court.

Mr. ROBERT GIBBS (White House Press Secretary): The changes that he is seeking he believes will ensure the protections that are necessary for these to be conducted in order to reach that certain justice as well as live up to our values.

NORTHAM: The new tribunals will only apply to 13 of the roughly 240 detainees who remain at Guantanamo. That could include men whose cases are already underway, like Khalid Sheikh Mohammed, who's accused of planning the 9/11 terror attacks. Still, there are questions about restarting a troubled legal process for so few.

Mr. JOHN HUTSON (Franklin Pierce Law School): Why are we setting up a court system for 13 people?

NORTHAM: John Hutson, the dean of Franklin Pierce Law School and a former Navy judge advocate general, says it's good that the Obama administration changed some of the more contentious tribunal rules. But Hudson doesn't think it will erase the stain of the earlier commissions.

Mr. HUTSON: I'm not sure that this will be seen as legitimate by either the domestic or the international community, simply because we've tried this twice before, it hasn't worked, and now, you know, yet again we're going to try it again.

NORTHAM: Hutson says the administration is missing the opportunity to use either a military court martial system or U.S. federal courts to try to the Guantanamo detainees. Both, he says, have the experience and the expertise to handle these types of cases.

Brad Berenson is a Washington lawyer who helped draw up the policies for the military commissions at Guantanamo. He calls the military tribunals a necessary weapon in the legal arsenal as the U.S. prosecutes suspected terrorists and says the Obama administration has made the right decision in keeping the commissions.

Mr. BRAD BERENSON (Lawyer): I think they've done the sound and reasonable thing in confronting the reality of the situation, recognizing that military commissions do have a role to play in this and largely preserving the structure that Congress set up when it passed the Military Commissions Act.

NORTHAM: Congress passed the act in 2006. At that time, then-Senator Obama voted in favor of the commissions but changed his stand dramatically during the presidential campaign, indicating he would reject the tribunals if he was elected.

During a press conference at the White House Friday, there were suggestions that the president was backpedaling. White House spokesman Gibbs denied this.

Mr. GIBBS: The president has been consistent in his views on this issue and been consistent on what was lacking in order to ensure justice, in order to ensure protection, and most of all to ensure that this process goes forward.

NORTHAM: In a statement, the president also indicated he wanted swift and certain justice, but the administration is asking for a four-month delay in the tribunals to give it time to enact the initial rule changes. Guantanamo is due to shut by January 2010, leaving the administration little time to get the newly revamped commissions underway at the remote prison camp.

Jackie Northam, NPR News, Washington. Transcript provided by NPR, Copyright NPR.