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Guantanamo As Prison and Courtroom: Is a White House Policy Unraveling or Coming Together?

According to a story in the New York Times, Secretary of Defense Robert Gates will authorize new military commission trials for detainees facing charges brought by the Obama administration. The question now is whether this signals a shift from the administration’s long-standing commitment to prosecutions in federal court.

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John Moore/Getty Images file photo

Last August, President Obama’s national security advisers, including Secretary of Defense Robert Gates, Attorney General Eric Holder and Secretary of State Hillary Clinton, met in the White House situation room to decide whether and how to go forward with trials for some Guantanamo prisoners.

Congress, even in the hands of Democrats, opposed moving detainees into the United States. And pressure was building from within the Pentagon to start long-promised military commission trials for a number of detainees, including those accused of a deadly attack on the U.S.S. Cole in 2000. Military prosecutors had been preparing cases against those detainees for nearly a year and were anxious for the go-ahead from Gates.

In the situation room, members of Obama’s inner Cabinet went back and forth, weighing three factors: the need to bring detainees to justice; a long-standing commitment to prosecutions in federal court: and a desire to avoid trials at Guantanamo, where military commissions were held during the Bush administration.

How, some advisers asked, could the administration successfully argue that it remained committed to closing Guantanamo if it was willing to hold new trials there? How could officials argue they were also committed to trials in federal court if the only trials taking place were in military commisions? Others countered that it was more important to bring whichever detainees they could to justice quickly than to preserve a two-track policy that was unpopular and unraveling.

Details of the meeting, recalled by participants and several others who were briefed, have not been previously reported. But they shed new light on the closed-door struggles of the Obama administration to hold on to its Guantanamo policies.

At the time of the discussion, a single Guantanamo prisoner was on trial in federal court in New York, and another detainee was facing old charges in a military commission. Having separate prosecutions underway simultaneously in both venues seemed possible, and Obama’s principal advisers did not want to give up.

According to several officials, Gates, Holder and Clinton left the White House that August day committed to moving forward simultaneously with prosecutions in federal court and military commissions. No military trials would be held anywhere unless trials in federal courtrooms were held at the same time.

That commitment is being tested today. According to a story in the New York Times, Gates will authorize new military commission trials for detainees facing charges brought by the Obama administration. It is unclear where those military trials would be held.

More important is whether this precedes an announcement of trials in federal court. That would determine whether today’s news is in fact a change in policy for the White House or a signal that federal prosecutions—the cornerstone of Obama’s Guantanamo policy—are still to come.

There were indications just last month that the earlier policy could crack. For a year, Holder and Gates displayed a unified public commitment to trials in military commissions and federal court. They jointly announced in November 2009 that five detainees would be prosecuted in federal court and another five in a military commission.

That commitment appeared to hold throughout 2010. As Congress began sealing off options for federal trials, Gates made no moves toward military commissions.

But last month, Holder was alone in asking Congress to ditch new efforts to prevent prosecutions in the United States. For the Justice Department, a ban would make it extremely difficult to hold any trials in federal court. For the Pentagon, it would make it difficult to hold military commission trials anywhere outside Guantanamo. But Gates did not co-sign Holder’s letter to congressional leaders or send his own, even when it became clear that the restrictions would be inserted into a defense spending bill. Congress ignored Holder and inserted the restrictions.

Around the same time, military defense lawyers assigned to represent detainees were told by prosecutors to begin preparing for trials. It was unclear which detainees would be charged first, according to several lawyers who discussed the conversations anonymously. But there were indications that prosecutors were readying for trial.

When Obama signed the spending bill earlier this month, he issued a signing statement saying his administration would “work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

The White House has not said how the administration will “mitigate” the effects, but some experts have suggested that the restrictions affect only the Pentagon. Justice Department funds could still be used to move prisoners to the United States. If that is the White House view, it will be known only when a prisoner is moved to the United States for trial. And only then will it be clear whether the White House policy to move simultaneously on prosecutions in federal court and military commissions still holds.

Spokesmen for the White House, the National Security Council and the Justice Department have not yet responded to requests for comment.

What is clear now is that the month of January has been something of a curse for Guantanamo.

It was January 2002 when the first detainees, shackled, blind-folded and outfitted in orange jumpsuits, arrived at the U.S. Naval Base on the Cuban island. It was January 2004, when military defense lawyers first announced they would challenge the legality of military commissions there in the Supreme Court. Two years later, the lawyers won. Congress passed new legislation authorizing military commissions. Obama, then a senator, voted against the Military Commissions Act.

The following January, in 2007, the Pentagon issued new rules for the military commissions and began preparing trials for top suspects, including those accused of plotting the 2001 terrorist attacks against the United States.

But those trials never fully got under way.

In January 2009, a newly sworn-in President Obama suspended the commissions, promised to bring detainees to trial in federal court and issued an Executive Order to close Guantanamo by January 2010. That was not to be. Instead, in January 2010, the administration, under pressure from Congress, abandoned plans to hold trials in New York for the accused plotters of the 2001 attacks.

One year later, in January 2011, on the eve of the ninth anniversary of the prison, Obama signed the spending bill whose provisions make it difficult to move detainees into the United States. Also this month, Obama is expected to issue a new Executive Order. This one would formalize detention without charge or trial for dozens of detainees.

The news today that the Obama administration has decided to go forward with new military at Guantanamo­­—as former President Bush had done—will test its commitment to a two-track policy and Obama’s first promise as president: to close the prison at Guantanamo Bay.

I’m just an ignorant nobody, but neither scenario works for me. Wurrah Wurrah what to do?  Public trials might expose less than ethical and or legal actions by U.S. and affiliates, creating a quandary for this administration, who is following standard protocols of NOT indicting previous seat holders.(Protecting the guilty) Both Federal and Military courts leave open the public perception of more coverups, the spectre of impropriety. Neither court is above reproach so simulated fair trials are a foregone conclusion. If no one objects to detention and torture without charge or conviction, why would guilt or innocence enter into the picture at all. How many of the detainees could just have been in the wrong place at the wrong time, or falsely accused for nefarious reasons? How many of US would not ultimately become the terrorists we are accused of being after such appalling treatment, administered at the hand of our supposed liberators. I fail to find justification for any remedy conceived by those who should have had the moral fortitude to stand up and prevent the dilemma that now faces them.  Their rules of war are the same as their claims of moral conviction, situational or nonexistent. Elections and public perceptions are the driving force behind both parties arguments. Another 911 attack on Guantanamo just might solve all their problems, especially if they can make it look like IRAN is behind it. ....Par for the course, Saudi friends slap your face, so what do you do? Attack Iraq . Afterwards, out of the goodness of their hearts, the oil companies offer to come in and save the devastated economy by taking over their oil production.  Afghanistan, we’re not the enemy at your gate, we’re in your house. Right damn Christian of us, huh?. I’m quite sure you’ll want to convert.

Just like Israel we have a two tierd justice system…one for muslims and one for non-muslims. This system is a direct result of christian fundamentalist ideology. How soon before we start persecuting non-christians? You change the rules for one group, you will change the rules for every group except the one in power. This nation is going down the toilet and the hand on the flusher is conservative.

I can assure you that the US military has no authority to try a non-US military personnel. I know that in WW II there were the Nuremberg trials, but even those were not by the military, and I believe they were constituted by at least some legislation. The US military has no authority to try POWs, that I’m sure is barred by the Geneva conventions.

Hey Charlie 6
  Rest assured the plan IS there, and has been for a long time. “Sunday Laws” are on the books, just waiting to be implemented.  Not just non christians targeted, but non” RELIGIOUS RIGHT” christians as well. Like the accusations they level against the muslims,  they have the same politically religious view, “If you can’t be converted to THEIR fold, YOU SHOULD BE KILLED.” Don’t forget, they now have their own mercenary army waiting in the wings,..... for HOME deployment.(BLACKWATER / XE INTERNATIONAL/ now after another name change…..” XE SERVICES”) Well funded by multimillion $ no bid Govt.military contracts and tea party “fanatics with a purpose.” Political and Judicial protections supplied, to get around that silly antiquated concept of JUSTICE. Their   deployment to New Orleans after Katrina, was testing the waters….. pun intended. Posse comitatus Act doesn’t apply to them. Right is wrong and wrong is right….. It’s just a damn shame their mothers were pro life.

Jimbojamesiv…. The way around that, is designation of “NON COMBATANT.” For every law, they have found a way to get around it. They are operating under MARITIME LAW, no longer recognizing Constitutional Common Law. This applies to U.S. citizens as well. Note the Gold fringe on the flag in every courtroom , this denotes Admiralty, (Maritime ) Law. Look it up on the net.