By Randall Mikkelsen
WASHINGTON, Jan 21 (Reuters) - Defense lawyers view U.S. President Barack Obama’s move for a four-month delay in Guantanamo trials of accused Sept. 11 plotters and other pending cases as the death knell for the process.
The military commissions process established by Congress in 2006 has been condemned internationally, by defense lawyers, and by some prosecutors.
Since the commissions were founded, two men have been convicted at trial and one pleaded guilty. Two of these have already returned to their home countries.
Here are some issues Obama will face in establishing a new system to replace the commissions:
About 80 terrorism suspects at Guantanamo, including five accused Sept. 11 plotters, are considered likely candidates for eventual trial. Obama has said traditional U.S. courts should be able to handle the cases, but whether military or civilian courts will be used is unclear.
If any prisoners are tried in existing military courts, some changes in the uniform code of military justice 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 Sept. 11 suspects and said in a newspaper interview this month that she had declined to refer his case for prosecution because of it. Several other Guantanamo prisoners have accused the United States of torturing them, and many cases are considered marred by the use of abusive interrogations.
The military commissions law allowed the use of coerced evidence, but not torture, while federal courts prohibit the use of coerced evidence.
The military commissions are in principle open to press coverage and human-rights monitoring, but strict procedures, limits on what could be discussed in open court and their remote location at the U.S. naval base on Guantanamo Bay, Cuba, sharply limited public awareness of the cases.
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 practice 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.
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)