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.
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"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.
"If you have a conviction, where will you confine them?" said Silliman, who's now the executive director of the Center on Law, Ethics and National Security at Duke Law School. "And if they are acquitted, what do you do with them?"
The administration's suggestion that the commissions might need newly devised hearsay rules also raises "red flags," said Karen Greenberg, the executive director of New York University's Center on Law and Security.
Most troubling of all to experts, however, is the president's proposal for "preventive" detention, or indefinitely imprisoning people who can't be tried in military or federal courts. The method is reminiscent of Bush's, raises the same legal questions and probably couldn't pass muster with the Supreme Court, experts said.
"To create a preventive detention statute would simply be to take Guantanamo move it onshore and cloak it in the veneer of legality," said Shayana Kadidal, a senior attorney with the Center for Constitutional Rights, which represents Guantanamo detainees.
Such a system would have all the same problems, including a high error rate because it's hard to know what someone is going to do in the future based on what they've done in the past. " There's also a tremendous incentive for politicians to over-detain because then their mistakes on the detention side are hidden," Kadidal said.
Robert Turner, a Vietnam veteran and the associate director of the University of Virginia's Center for National Security Law, said that Article 97 of the Third Geneva Convention provides that "prisoners of war shall not in any case be transferred to penitentiary establishments . . . to undergo disciplinary punishment therein."
"It is clear al Qaida detainees do not qualify for the full protections (of the Geneva Conventions), but if we are treating this as a Law of Armed Conflict setting, we ought to be sensitive to the principles embodied in international law," Turner said.
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