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Constitutional Law

Obama Seeks 120-Day Trial Delay in All Gitmo Cases, Plans to Close Prison

Posted Jan 21, 2009 1:41 PM CST
By Martha Neil

In his one of his first acts in office yesterday, President Barack Obama instructed prosecutors to seek 120-day delays in all cases now before U.S. military tribunals at Guantanamo Bay in Cuba while his administration evaluates the situation. Meanwhile, his aides are working on an executive order that would close the American naval base detention facility there within a year.

In response today a U.S. military judge "suspended the trial of five detainees accused of involvement in plotting the Sept. 11, 2001, terrorist attacks, acceding to a request from military prosecutors in accordance with a directive from the new Obama administration late Tuesday," recounts the Washington Post.

Four of the five defendants, including avowed attack mastermind Khalid Sheik Mohammed objected to the pause in the proceedings, notes a Bloomberg article on the 120-day delay, even though the Obama administration's new direction is expected to benefit their cases, according to tribunal filings by military prosecutors.

The new Obama administration policy has also resulted in a delay in the controversial murder trial of Omar Ahmed Khadr. A Canadian citizen, he has been held by the U.S. since he was 15, after being captured in 2002 in Afghanistan. He is accused of killing a U.S. soldier with a grenade in what has been described as a battlefield situation there.

"The suspension had been expected because, as a candidate, Mr. Obama described the military commissions as a failure and suggested that he may decide to prosecute detainees in existing courts," reports the New York Times. "The military commissions have been criticized as lacking in the basic protections of the American justice system and have been plagued by legal and practical difficulties since the Bush administration first announced its plan for prosecution in the months after the 2001 attacks."

Related coverage:

Miami Herald: "Obama moves on Guantanamo vow, seeks to delay trials"

Washington Post (Nov. 2008): "Guantanamo Closure Called Obama Priority"

Islam Online (Qatar): "Obama Halts Gitmo Trial, World Welcomes"

Miami Herald: "Family of 9/11 victims voice anger at delay in proceedings"

Comments

1.

J.D.
Jan 21, 2009 6:36 PM CST

Jihadists: 1
Americans: 0

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2.

B. McLeod
Jan 21, 2009 7:34 PM CST

Actually, the story earlier this week, concerning the Gitmo prosecutor who resigned, casts doubt on whether all the detainees are “jihadists.”  The observations he reported suggest that the government really doesn’t know what, if anything, some of the detainees have done, or why we are even holding some of them.  Beyond that, if the government can’t get a conviction against a detainee under recognized law, in a real court, they probably shouldn’t be trying that detainee to begin with.  Setting up some phony quasi-tribunal to convict prisoners of made-up crimes, without due process, is really no better than summarily standing them against a wall and shooting them.

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3.

J.D.
Jan 21, 2009 7:46 PM CST

Now you’re onto something, McLeod. You do realize that we never held a trial for every Nazi during WWII, right? Are you suggesting that we should have had a trial for each and every Nazi before firing upon them?

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4.

B. McLeod
Jan 21, 2009 10:34 PM CST

Certainly there were, from time to time, accounts of some of our soldiers declining to receive surrenders, particularly of SS field units and camp guards.  Less frequently, some prisoners actually taken from such units did not reach rear detention areas.  Never once have I heard anyone who participated say they were proud of these occurrences, and our soldiers are regularly trained not to kill surrendering enemy combatants.

As far as the trials, for those Nazis who were formally tried, Stalin and Churchill both thought (for somewhat different reasons) that they should not be held.  Stalin (whom I think you would have liked) saw little need for anything but summary executions or working the prisoners until they died.  In fact, very few of the many thousands of German prisoners taken by Soviet forces ever returned home.  Churchill was concerned that the trials presupposed the need to recognize that there was some inherent, international law that was binding on nations and their citizens, apart from and superior to their own national laws.  He foresaw (and in Vietnam, it proved true) that articulating these inherent, international principles would become troublesome when one of the allies might subsequently wish to violate them for its own reasons.  As of the present day, I think the chief lesson of Nuremberg is that it showed the folly of making up laws to “try” defeated enemies before special tribunals.  I think the application of that lesson to our present set of issues (where we have already effectively accepted the surrender of all these detainees) is that we need to base any “trials” on real laws and conduct them before real courts.  It would follow from this that where a conviction cannot be obtained on such a basis, the alternatives would be to release the detainee, or, to the extent they are actually determined to be the equivalent of an enemy soldier, hold them under guard with proper and humane treatment for the duration of the relevant conflict.

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