The prison at Guantánamo Bay, Cuba, is an ever more embarrassing problem for President Barack Obama. Once a powerful campaign line, the idea of closing the prison is now such a source of heated political debate on Capitol Hill and such a complex legal challenge that the Administration is unlikely to meet its self-imposed deadline of shutting the place down by late January 2010.
One ongoing effort to speed up the process may dig the President in deeper: when Obama took office, the unorthodox practice of adjudicating terrorist cases at Gitmo through the use of military commissions seemed to be headed for the same ash bin as other discredited parts of George W. Bush's war on terrorism, thanks to skepticism in the U.S. courts about their fairness and Obama's campaign promises to do away with them. But on May 15, Obama revived the idea of commissions for an uncertain number of detainees at the controversial prison, pledging to help Congress refashion tribunals into a "fair, legitimate and effective" forum to try alleged terrorists.
The reforms, likely to be enacted by the Senate this week, significantly expand due process rights beyond the law Bush muscled through Congress in 2006. Statements obtained by "cruel, inhuman or degrading treatment" would be prohibited. Hearsay evidence would be harder to introduce in a commission proceeding. Defendants would have a greater ability to select their own counsel. And Administration lobbyists successfully fought for even broader protections in the bill that was approved by House-Senate conferees and passed by the full House on Oct. 8.
A Department of Justice spokesman told TIME that while many alleged terrorists will be tried in federal criminal court, reformed commissions would be a "viable option" for certain cases, including those in which intelligence sources, methods and evidence could be compromised in a less restrictive setting.
But tribunals will not clear the Gitmo backlog of 221 cases as quickly as hoped. Once Obama signs the law, the Department of Defense will have 90 days to draft rules spelling out how the reformed panels would operate. With new evidentiary standards, government prosecutors will have to review their cases about a dozen commission proceedings have begun and determine, along with the judges and defense lawyers, whether any evidence was obtained by coercion or inadmissible hearsay. Previously denied access to prosecution witnesses would have to be provided. Defendants whose options had been limited to military attorneys in the past would have the right to select new counsel among more seasoned civilian attorneys.
"All these pieces take time," says Christopher Anders, the ACLU's senior legislative counsel. "It's hard to see how the government can short-circuit the significant start-up time that's going to be needed. "After all this work," he said of the commissions, "we'll see if they end up getting used."
Once the refined wheels of military justice begin to turn, there's still a risk they could grind to a halt. Many of Gitmo's detainees are charged with material support for terrorism or terrorist groups, one of the offenses Congress set aside for the commissions, as it did in 2006. But such offenses have not been recognized as war crimes by the Geneva Convention, nor have they been brought before military tribunals before. Administration legal officials have expressed concern that civilian appeals courts would reverse hard-won convictions on grounds that material support offenses should not have been tried by the commissions.
Ramzi Kassem, a City University of New York law professor who represents Gitmo detainees, said that given those concerns, prosecuting such cases before military commissions would "evidence blatant disregard for the law and be symptomatic of how military commissions were created to produce convictions at the expense of justice and legality." Which is another reason that the newly reformed commissions may not help close Gitmo anytime soon.