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Courts-martial are last plausible model for Gitmo

The military justice system would strike the right balance on security and due process.

By Scott L. Silliman

Upon taking office, President Obama immediately suspended the military commissions at Guantanamo Bay to give his administration time to determine the best system for trying detainees. Authorized by Congress in 2006, the military commissions had been criticized domestically and internationally for not protecting the rights of detainees and for being too politicized.

Obama's suspension expires next week, and the administration still has not announced its plan. In my opinion, there are two possible options: trial in the federal criminal courts, or a revised military-commission system using court-martial rules. Only the latter is truly feasible.

There are inherent problems with prosecuting detainees in the federal courts. Because the detainees would be entitled to full due-process rights, their lengthy pretrial detention at Guantanamo and its coercive conditions could pose significant legal challenges for the prosecution.

Furthermore, the CIA has acknowledged that two of the alleged co-conspirators of the Sept. 11, 2001, attacks, Kahlid Shaikh Mohammed and Ramzi Binalshibh, were waterboarded. That raises questions about whether any of their statements or the evidence derived from them would be admissible in legal proceedings.

There are also considerable security risks surrounding federal criminal proceedings, as well as imprisonment of any of those convicted. We would have to anticipate the threat of terrorist attacks by al-Qaeda sleeper cells in any community where the detainees end up confined. Mohammed and Binalshibh are high up in the al-Qaeda organizational structure, and a bold attack would not be out of the realm of possibilities.

On the other hand, the courts-martial system, under the Uniform Code of Military Justice - the system we use to prosecute our own service personnel when they commit crimes - has several advantages.

Due-process rights in courts-martial are substantial, and many of them mirror those in the federal courts. For example, hearsay evidence is not admissible, nor are statements made under coercion.

But, in contrast to the federal system, the military-justice system is portable and efficient. Courts-martial can be quickly convened and held at any U.S. military facility in the world, obviating the security risks of trials in this country.

Except for in capital cases, a conviction requires only a two-thirds vote of the jury panel, just as in the suspended military-commission system. Appeals are heard by a five-judge civilian court that, after nearly 60 years, is well-versed in military jurisprudence. These are the same conditions faced by U.S. military personnel during trials and appeals.

Also, any U.S. military facility in the world can be designated for confinement.

In 2006, after the U.S. Supreme Court struck down the first military-commission system established by the Bush administration, Congress had an opportunity to create a system that closely adhered to the court-martial model. I advised lawmakers to do so when I testified before the Senate Judiciary Committee and the Senate Committee on Armed Services in July of that year.

However, amid fierce lobbying by the Bush administration, Congress chose to deviate from that model in several key areas. Those deviations - including allowing hearsay evidence and, potentially, statements obtained under coercion - have prompted the continuing criticism of the trials at Guantanamo.

The president and Congress now have the opportunity to correct that error and establish a revised military-commission system that follows court-martial rules and procedures in virtually every respect. Other than the clarification that "Miranda advice" need not be given to someone captured on the battlefield, and that a pretrial investigation (the military equivalent of a grand jury) would not be necessary, the military commissions should be like courts-martial in every way.

A revised military-commission system is the far better option for prosecuting those at Guantanamo who are accused of crimes. The new administration can easily follow that path. I hope it does.