Obama Will Retain Military Commissions, But Revise the Rules

President Obama is expected to announce today that he will retain military commissions to try some Guantanamo detainees while providing additional due process rights for the accused.

The rule changes would bar evidence obtained through "cruel, inhuman or degrading" interrogations, a change likely to ban evidence obtained through waterboarding, the Wall Street Journal reports. Other changes would give detainees greater latitude in picking their lawyers, restrict the use of hearsay evidence and protect detainees’ decisions not to testify, according to the story and articles in the Los Angeles Times and the New York Times.

Human rights groups are infuriated by the decision to retain the commissions, the Los Angeles Times says. "The results of the cases will be suspect around the world,” said Gabor Rona, the international legal director of Human Rights First. “It is a tragic mistake to continue them," she told the newspaper.

The New York Times explains the hearsay changes. The Bush administration had allowed the use of hearsay against detainees tried by the military commissions unless they could show it was unreliable. The Obama administration plans to reverse the burden of proof and require prosecutors introducing hearsay evidence to show it is reliable. While the shift in burden of proof gives detainees more protection, it still falls short of the hearsay protections in civilian courts, according to the story.

The Wall Street Journal explains other rule changes protecting decisions not to testify. Obama's new rules are expected to eliminate a Bush administration rule that required military judges to tell jurors that defendants seeking to introduce their interrogation statements are avoiding cross-examination. The new rules would also bar jurors from drawing an adverse inference from a detainee’s decision not to testify.

The administration will seek an additional 120-day delay in commission trials to give it time to show the rule changes to Congress 60 days before they take effect, as required by the Military Commissions Act, and to allow Congress to consider further legislation modifying the commissions, according to the Wall Street Journal.

No final decisions have been made on which detainees would be tried by the commissions. Those facing the most serious charges may be easier to try in regular court because they have bragged about their role in the Sept. 11 attacks, the Wall Street Journal says.