Military Commissions Examined by Congress

WASHINGTON (CN) - With time ticking on President Barack Obama's promise to close Guantanamo Bay Prison by the end of the year, members of Congress convened Friday to decide the manner of trial for the prisoners and their potential release. "With little more than five months to go, the lack of details on how Guantanamo should be closed, where detainees will be transferred, is disturbing," said California Democrat Ike Skelton, Chair of the House Armed Services Committee.

An inter-agency task force missed its deadline earlier this week to release a major report on how to handle detainees and how to close the prison, underscoring the complexity of the situation. The team now has a six-month extension.

Congress is waiting for plans from the Justice Department on how the prisoners will be dealt with before it allocates funds necessary to close the prison.

At Friday's hearing, legislators directed questions to Defense Department and Justice Department officials over the detainee policy and plans to reform the commissions, as part of rewriting the Military Commissions Act of 2006.

The problems stem from the unconventional nature of modern warfare, with the government unsure how to treat fighters who not part of a national army. One of the hottest questions of the hearing was over what to do with war prisoners when hostilities cease.

Military commissions are courts controlled by the military and members of the military serve as jurors. The commissions have been used heavily in processing detainees caught by American troops in predominately Afghanistan.

Obama originally spoke out against the commissions, which were tarnished by poor evidence and lack of transparency, but he has now said he plans to continue using them to process the detainees after changes in procedure are made.

Assistant Attorney General David Kris said the administration intends to prosecute in federal court the detainees charged with violating criminal laws, maintaining that the courts have long been an "effective tool" in prosecuting terrorist suspects and that "the legitimacy of their verdicts is unquestioned."

But detainees who are charged with violating the laws of war will appear before military commissions.

"There are some in custody at Guantanamo today that could not be tried in a federal court, and even with relaxed hearsay evidence could not be tired in a military tribunal, but we know full well that they are highly dangerous," Skelton mentioned before asking how the nation will deal with them.

"We keep them until the end of the war," Department of Defense General Counsel Jeh Charles Johnson replied calmly.

"When does the war end?" Skelton asked. "Because at that moment those detainees, as bad as they are, under the law of war, would be free." He then directed Kris of the Justice Department, who replied that the war would be over "when the adversary is defeated," to go do some research and get back to the committee.

"We have no intention of releasing these prisoners even if the court determines they are innocent," Maryland Republican Roscoe Bartlett declared, and asked whether the government is making a problem for itself in the future by saying it might have to release the war prisoners.

During his address to the nation on national security in May, Obama discussed a "prolonged detention" policy.

But Virginia Sloan of the Constitution Project rejected that plan in a written statement. "Whatever we call it, any new or continued system for indefinitely detaining suspected terrorists without charge undermines the fundamental principles enshrined in our Constitution and will continue to make our nation less safe."

Despite his view that American military commissions work well, Bartlett said the term brings to mind those that occurred in the Banana Republic, which he described as a midnight trial and an execution at dawn. "Are there not established world courts in which these prisoners could be tried?" he asked.

"I would not rule out that possibility," Johnson from the Defense Department replied.

But Kris defended "properly constructed" military commissions as a reasonable way to try war detainees and said the administration is working to improve the commissions. "With those reforms, the military commissions system would not be a second-class system."

They "have a long history in our country, dating back to the Revolutionary War," he said. "Properly constructed, they take into account the reality of battlefield situations while affording the accused due process."

California Republican Ranking Member Howard McKeon called for a plan that denies detainees Habeas Corpus review, places them before military commissions, and forbids the government from releasing the detainees within the United States.

In January, Obama signed an executive order, establishing two interagency task forces to review the detention of the detainees, and in May Obama announced plans to revive the military commissions, but prohibited the admission to commission hearings of statements obtained through cruel or degrading treatment, weakened the power of hearsay, and granted basic protections for defendants unwilling to testify.

Kris proposed that Congress go further than simply banning "statements obtained by torture." He urged them to adopt a voluntariness standard, remarking that federal courts would likely forbid involuntary statement from being used before the commissions. The adoption of the voluntariness standard would help in "minimizing the risk that hard-won convictions will be reversed."

"The proposed changes to improve evidentiary standards and due process protections are too little too late, and cannot transform the commissions into a legitimate forum for prosecuting detainees," Sloan from the Constitution Project said in a written statement.

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