By Carol J. Williams and Julian E. Barnes|May 16, 2009
Reporting from Washington and Los Angeles — President Obama's decision Friday to revive military tribunals to try suspected terrorists will likely fail to erase the taint of illegitimacy over the courts despite efforts at reform, civilian and military legal experts said.
Obama outlined five rule changes aimed at bolstering defendants' rights, including strict limits on the use of coerced evidence, tougher restrictions on the use of hearsay evidence and more latitude for defendants to choose their own lawyers.
Still, experts said the tribunals, also known as military commissions, are seen as so flawed that no amount of improvement will be able to dispel impressions that they are rigged to deliver convictions.
"I believe that the rules and procedures can be fixed so as to provide an actual fair proceeding. But what I don't think they can salvage is the perception that the commissions are an illegitimate and unfair process," said Air Force Maj. David Frakt, a Western State University law professor who represents two prisoners held at the military prison at Guantanamo Bay, Cuba.
During the presidential campaign, Obama himself criticized the commissions as an "enormous failure" and said he would prefer to try detainees in federal courts or in traditional military courts.
His turnaround has surprised some experts, given the years of discussions over how hard it would be to fix the system.
"To make the commissions truly fair and equitable, they would have to be so fundamentally reconfigured that I just don't really understand how they can go forward," said Amos N. Guiora, a national security law professor at the University of Utah.
Administration officials said they are still mulling over other reforms to the tribunal system, although White House Press Secretary Robert Gibbs declined to detail them.
Gibbs defended the administration's decision to resume the tribunals, saying that "first and foremost, the president of the United States is going to do what he believes is in the best security interests of the people of the United States."
White House Counsel Greg Craig held a conference call with human rights leaders to explain the decision, but opponents said they remain concerned.
"I came away unconvinced that the case has been made for military commissions," said Elisa Massimino, executive director of Human Rights First, noting that the case-by-case evaluation Obama ordered on the 240 Guantanamo detainees has yet to be completed.
