The White House may yet be several weeks away from announcing whether it plans to overrule Attorney General Eric Holder and order that the 9/11 conspirators be tried before military commissions rather than in civilian courts. But it's not hard to figure out which way the wind is blowing.
The Pentagon is set to announce that Secretary of Defense Bob Gates has appointed a new chief judicial officer for the Office of Military Commissions, according to three Defense Department sources familiar with the decision. The appointment, which could come as early as Wednesday, paves the way for the Pentagon to begin convening a series of high-profile terror trials before military commissions at the U.S. detention facility at Guantanamo Bay--the very same prison the president had once pledged to have shut down by the beginning of this year.
"All the indications we've been given are to get ready for a lot of activity in Guanantamo," said a military prosecutor, who asked not to be identified talking about upcoming cases. "It's full steam ahead."
The appointment of retired Admiral Bruce MacDonald, who formerly served as the chief Judge Advocate of the Navy, as the new "convening authority" for the Office of Military Commissions is among the most important moves in an apparent gearing up for the expected new wave of trials. As convening authority, MacDonald--who replaces Susan Crawford, a Bush political appointee who retired two months ago--will have the responsibility to "refer" charges against Guantanamo terror suspects to trials after receiving recommendations from military prosecutors. Such "referrals"--the equivalent of indictments--have been on hold ever since last year when the White House ordered a halt to all military commission proceedings as part of its larger review about how to close Gitmo.
But now that "hold" is, for all intents and purposes, being lifted. Military prosecutors are actively working on as many as 50 cases of Gitmo detainees who can be referred for trial before the commissions, according to two commission sources. The trials would take place under new rules that were enacted by Congress and signed into law by President Obama last year aimed at making the tribunals fairer and more respectful of the rights of defendants--even while they continue to offer greater latitude to prosecutors. (Under the new rules, for example, hearsay evidence that would be banned in civilian court trials continues to be admissible before military commissions.)
The first trial under the new system is slated to begin in July with the case of Omar Khadr, who is charged with lobbing a grenade at American solders in Afghanistan when he was 15 years old. The trial of Khadr, dubbed the "boy soldier," has kicked off a storm of controversy over the propriety of bringing a war crimes case against a minor and Obama administration officials have been reported to be attempting to work out a deal that would repatriate him to his native Canada. But so far, no deal has been struck and the Pentagon is planning to fly reporters down to Gitmo in early April for pre-trial hearings in the case. Two weeks later, the Pentagon is planning another press trip for hearings on a different case, that of Noor Uthman, a Sudanese national charged with running an Al Qaeda training camp in Afghanistan.
And there's plenty more to come, including a newly refined case against Abd al Rahim al Nashiri, the alleged architect of the bombing of the U.S.S. Cole.But the big decision everyone is waiting for is whether President Obama, as is increasingly expected inside the Beltway, will overturn Holder's decision and return Khalid Sheikh Mohammed and four other 9/11 co-conspirators to the military commissions.
One tea leaf worth reading: Robert L. Swann, one of the chief prosecutors of the original military commission case against the 9/11 co-conspirators, had been widely expected to leave the office after Holder announced his decision to transfer the 9/11 case to civilian court. Swann had spent years developing the military case against the defendants. But Swann is very much still on the job and working on cases, a commission spokesman said Tuesday.
The embrace of military tribunals follows months of controversy over Holder's decision to try Khalid Sheikh Mohammed and other 9/11 conspirators in federal court in New York--a move that generated opposition from New York political figures such as Mayor Michael Bloomberg, and Republicans in Congress. Administration officials have acknowledged it was looking increasingly likely that Congress would block any funding for civilian trials of the 9/11 conspirators. But the scale of the new wave of military trials is certain to generate criticism from liberals and human rights groups, who continue to view the commissions as unfair. In a statement Tuesday, the American Civil Liberties Union condemned any reviving of the commissions. "The Obama administration should not use the discredited military commissions system for the most important terrorism trials in American history," said Jameel Jaffer, director of the ACLU's National Security Project. "The federal criminal justice system has experienced judges, experienced prosecutors, a track record that includes hundreds of successful terrorism prosecutions and procedural rules that have been tested and refined over two centuries. To displace this system for a military commissions system that does not have rules, that is certain to result in further delay, that has resulted in only three convictions over eight years and that is viewed as illegitimate by much of the rest of the world, would be deeply irresponsible."