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Obama Administration Seeks Flexibility for Guantánamo Trials

By CHARLIE SAVAGEAPRIL 21, 2016

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Closing Guantánamo Bay

As the Obama administration works toward closing the military prison at Guantánamo Bay, Cuba, officials reflect on this chapter of American history.

By REUTERS on Publish Date April 21, 2016. Photo by Richard Perry/The New York Times. Watch in Times Video »
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WASHINGTON — The Obama administration is proposing a series of changes to the rules for military commission trials at Guantánamo Bay — including allowing judges to conduct pretrial hearings by videoconference, sparing some participants the flight to the remote base in Cuba — in an effort to make the process more efficient and less costly.

The administration is also seeking to allow civilian government lawyers, instead of uniformed ones, to represent defendants; enable the primary judge to appoint a second judge to hear certain motions; and make it easier for the Pentagon to convert a death penalty case into one that could result in imprisonment for life.

The Pentagon sent the proposal — which was first reported by The Miami Herald — last week to the House and Senate Armed Services Committees. The administration wants to add the changes to the annual defense authorization bill, which it is preparing.

In February, when President Obama sent Congress his plan for closing the prison, he mentioned concerns about the expense and effectiveness of the military commission system and foreshadowed his move to make changes. Among the long-delayed cases is one against five detainees accused of aiding in the terrorist attacks of Sept. 11, 2001.

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“I have to say, with respect to these commissions, they are very costly, they have resulted in years of litigation without a resolution,” Mr. Obama said then. “We’re therefore outlining additional changes to improve these commissions, which would require congressional action, and we will be consulting with them in the near future on that issue.”

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On Thursday, Brig. Gen. John Baker, the chief defense lawyer in the military commissions system, criticized the proposed overhaul, calling it an “unfair and unconstitutional” attempt to change the rules “in the middle of the game.”

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How Will Obama’s Plan to Close Guantánamo Work?

President Obama sent his plan to Congress to shutter the prison in Guantánamo Bay, Cuba, and he has 5 months left to close it. What are some options for the endgame?

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“Here we are in the midst of perhaps the most important criminal trial in American history, and the government wants to change rules midstream to deny these individuals the right to be present in the courtroom, in violation of the Constitution,” he said.

But Cmdr. Gary Ross, a Pentagon spokesman, said the government was “committed to ensuring that the military commissions system remains fair and impartial,” adding that the proposals were “narrowly tailored to allow for better management, flexibility and accountability.”

“We believe they will provide ways to ease burdens on the litigants and the judges to facilitate a more efficient process,” he said.

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The draft legislation included rationales for the various changes. It would permit the judge to convene certain hearings via videoconference — largely pretrial motions in which the “commission,” or jurylike panel of military officers, is not required to be present, unlike trial testimony about the guilt or innocence of the defendant. Reducing the need for “all necessary participants” to travel to Cuba every time an issue was addressed would “provide flexibility.”

It also said that allowing civilian government lawyers to represent detainees could reduce the problem of turnover caused by periodic mandatory redeployments of military officers.

The administration also submitted a second piece of Guantánamo-related draft legislation to Congress last week. It would revoke restrictions on transferring detainees, including a ban on bringing them to the United States. Mr. Obama’s plan for closing the prison calls for bringing detainees facing charges or otherwise not recommended for transfer to a replacement prison on domestic soil. The Republican-controlled Congress opposes the idea.

When he took office in 2009, Mr. Obama ordered the prison closed within a year and weighed abandoning the Bush administration’s military commissions. But he decided instead to keep and overhaul the tribunals system as an available tool for dealing with a narrow band of detainees, especially those who could receive a trial only under the military system’s more flexible rules concerning the admissibility of evidence.

But the tribunals ended up being more important than he expected after Congress forced the administration to abandon its plan to move the Sept. 11 case to civilian court by banning transfers to domestic soil — even for prosecution — which left the commissions system as the only option. But since the arraignment of Khalid Shaikh Mohammed and four other men four years ago, it has been bogged down in pretrial hearings, and no actual trial is in sight.

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