Print  email 

Obama's proposed Guantanamo legal plan rife with problems

Marisa Taylor and Michael Doyle | McClatchy Newspapers • Published May 21, 2009

• Links
• Comments (0)

WASHINGTON — President Barack Obama raised more questions than he answered Thursday about the legal prospects for Guantanamo Bay detainees.

While politicians have been most concerned that detainees there not be transferred to prisons in the United States, the real legal quandary is about how to form new military commissions or detain terrorism suspects indefinitely without violating U.S or international laws.

Detainees could be placed on one of four tracks: They could be released or transferred to other countries, tried in federal courts, charged before newly comprised military commissions or detained indefinitely because they "pose a clear danger," but cannot be prosecuted.

Many legal experts said that Obama must offer more concrete details of how his sweeping plan would work.

"There's nothing on the table yet," said Duke Law School Professor Madeline Morris. "There are major issues that still need to be resolved."

By prosecuting some suspected terrorists in federal court, the administration will continue to face the possibility that the strongest evidence against a detainee is a confession obtained either through torture or illegal duress. It also will have to deal with the requirement that defendants and their lawyers must be given access to the evidence against them, although some of it may be highly classified.

Obama, like President George W. Bush before him, has retained the concept of a military commission. As Obama said Thursday, these commissions will try those who "violate the laws of war."

Obama has proposed tightening some of the commission standards; including, for instance, banning the use of statements "that have been obtained using cruel, inhuman, or degrading interrogation methods." Obama further stated Thursday that defendants will have " greater latitude in selecting their own counsel and more protections if they refuse to testify."

Even so, Morris said that "we don't know what the configuration" of the military commissions will be, and retired Air Force colonel Scott Silliman added that Obama's stated revisions don't answer myriad procedural questions such as: Will defendants be permitted to choose foreign attorneys.