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SCENARIOS: Trying Guantanamo inmates after Guantanamo
January 22, 2009 / 9:48 PM / 9 years ago

SCENARIOS: Trying Guantanamo inmates after Guantanamo

WASHINGTON (Reuters) - President Barack Obama's move to close the Guantanamo prison within a year reopens the issue of how to try the accused September 11 plotters and other pending terrorism cases.

The Guantanamo war crimes commissions, put on hold by Obama's order, were established by Congress in 2006 and have been condemned as unjust by defense lawyers, some prosecutors, and many other countries.

Two men have been convicted in commission trials and one pleaded guilty. Two of these have already returned to their home countries.

Here are some issues Obama faces in establishing a new system to replace the commissions:

WHOM TO TRY?

About 80 Guantanamo prisoners, including five accused September 11 plotters, have been considered likely candidates for trial, out of 800 who have ever been held there and about 250 or so who remain.

Under Obama's order, the government would review whether individual detainees could be released or transferred to another country or to a U.S. detention facility. Those ineligible will be considered for prosecution.

WHAT COURTS?

Obama's order stated a preference for using traditional military or civilian courts, but said the military commissions, with some possible revisions, could be an option.

If any prisoners are tried in existing military courts, some changes in the military justice code may be needed to make it applicable to detainees who are not considered prisoners of war and to cover terrorism charges.

WHAT TO DO WITH COERCED EVIDENCE?

The official overseeing the Guantanamo commissions accused the military of torturing one of the September 11 suspects and said this made his prosecution impossible.

Several other Guantanamo prisoners have made accusations of torture, and many cases are considered marred.

The military commissions law allowed the use of coerced evidence, but not torture, while federal courts prohibit the use of coerced evidence.

ENSURING OPENNESS

The military commissions are in principle open to press coverage and human-rights monitoring, but strict procedures, limits on open-court discussions, and their remote location at the U.S. naval base on Guantanamo Bay, Cuba, sharply limited public awareness of the cases.

CLASSIFIED EVIDENCE

Some analysts say a new "national security" court may be needed to hear terrorism cases involving highly sensitive classified evidence. Others say the existing court system has long practiced handling classified evidence.

WHERE TO TRY SUSPECTS AND KEEP CONVICTS?

Officials may have to decide issues such as where was a crime committed to determine which federal court would hear a case. There would also be decisions on whether to place a particular convict in the top security "Supermax" federal prison in Colorado, or in lesser security facilities for lower-risk convicts.

PRESERVING EVIDENCE

The American Civil Liberties Union has urged Obama to preserve all evidence related to the commissions and the confinement of suspects. Critics have accused the military of violating human rights, and such evidence could support or disprove the accusations.

Editing by Jane Sutton and Mohammad Zargham

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