Expressions of shock and betrayal flowed from human rights groups against President Barack Obama last week after it was announced that some Guantanamo Bay terror suspects would continue to be tried by military commissions rather than conventional federal courts. "President Obama is backtracking dangerously on his reform agenda," warned Human Rights Watch director Kenneth Roth. The head of the American Civil Liberties Union, Anthony Romero, called Obama's announcement "absurd," adding, "These tribunals have no place in our democracy." (Read "Obama Orders Gitmo Closed. Now the Hard Part.")
President Bush established the secretive commissions to try accused terrorists two months after the Sept. 11 attacks, though only three defendants have been prosecuted amid legal challenges and repeated setbacks in the U.S. Supreme Court. Obama explicitly criticized the commissions during the presidential campaign and suspended their use on his second day in office, the same day he ordered the Guantanamo Bay detention facility closed within the year. But privately White House officials worried about winning conventional convictions against some "high-value" defendants, including accused Sept. 11 mastermind Khalid Sheikh Mohammed. (The standard for admitting evidence is more rigorous in civilian court, and some confessed terrorists were not first told of their right against self-incrimination, which could bar their confessions from court.) Of the 240 detainees at Gitmo, 13 have been referred to military commissions for trial. (See pictures from inside Guantanamo.)
In a statement announcing his reversal, President Obama stressed the reconfigured commissions will increase legal protections for defendants, such as barring information obtained through brutal interrogations and limiting the use of hearsay evidence. "This is the best way to protect our country, while upholding our deeply held values," Obama said on May 15. Many Republicans and some Democrats applauded the move, insisting that some terror suspects are simply too dangerous to be tried in open court with the full protections afforded American citizens. "I give them great credit for coming to their senses," said David Rivkin, a former Reagan administration lawyer.
Designed to handle crimes committed in times of war or rebellion, military commissions stretch far back into American history. General George Washington convened a precursor to a military commission a board of inquiry in 1780 to try a British major accused of conspiring with Benedict Arnold during the Revolutionary War. The board recommended to Washington that Major John Andre be executed, and he was promptly hanged. Military commissions' first documented use came during the Mexican-American War in 1847, when the U.S. Army occupied large areas of Mexico that lacked a working court system. Since then they've been used to prosecute thousands in the U.S. and abroad during the Civil War, Reconstruction, the Spanish-American War and World War II. Defendants have included a former Ohio Congressman accused of sympathizing with the Confederacy during the Civil War (ordered confined for the rest of the war), eight accused conspirators in President Lincoln's assassination (four sentenced to hang, four given prison sentences), and eight Germans accused of arriving in the U.S. by submarine to carry out sabotage attacks (six were electrocuted).
Defendants are offered fewer legal protections in military commissions than civilian courts, such as the right to public proceedings and a trial by jury. Military officers serve as judges and jurors (in cases that call for a jury) and the right to an appeal is not guaranteed. Unlike courts martial, which are mainly concerned with violations of the Uniform Code of Military Justice by U.S. servicemembers, modern military commissions are generally intended to try foreign combatants accused of violating the laws of war. As it is with many war powers, the Constitution is vague about the scope of military commissions; legal wrangling over the extent of the commissions' authority goes back more than a century. In 1866, the Supreme Court said a military commission could not try an Indiana lawyer accused of agitating for the Confederacy, ruling that citizens must be tried in civilian courts when they're open and accessible. But in 1942, the court upheld President Roosevelt's tribunals for the eight accused German saboteurs in the failed scheme known as Operation Pastorius. More recently the court slapped down the Bush Administration's planned commissions in three separate cases, ruling among other things that only Congress can establish the tribunals; that some protections of the Geneva Conventions must extend to prisoners; and that the prisoners' right to habeas corpus cannot be suspended. Obama's decision to revive the commissions virtually ensures those battles will draw on.