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Detainee Task Force Recommends Reformed Military Commissions to Try Some Gitmo Detainees

The Obama administration’s Detention Policy Task Force has issued a preliminary report recommending that Guantanamo Bay detainees be tried in federal court for criminal violations, if possible, and in military commissions if they’ve violated the laws of war. But the big decisions about future detention policy, and issuance of a final report, have been postponed for another six months.

The announcement that the administration will pursue both the criminal and military commission prosecutions is hardly a surprise, given that President Obama has said repeatedly that he intends to revive the military commissions in a new-and-improved form — providing more due process protections than the previous ones, though not enough to satisfy civil liberties groups. Still, it represents the first determination by the task force, created just after the president’s inauguration to advise him on creating a new legal framework for detention policy.

As for when the administration will seek criminal prosecutions in civilian federal courts and when it will pursue military commission trials, that remains a bit murky. After all, many of the crimes committed by alleged terrorists might qualify as both criminal acts and violations of the laws of war.

Acknowledging this, the task force seems to say that the president ought to be able to prosecute them in both places:

The President has concluded that, just as the defeat of al Qaeda will require employment of all instruments of national power—military, intelligence, law enforcement, and diplomatic – so too must we have the ability to hold our enemies accountable for their crimes in more than one forum, namely both federal courts and military commissions. The two systems are not mutually exclusive but should instead complement one another.

As Spencer noted during the Senate Armed Services Committee hearing earlier this month, who gets tried where and why is a point of serious controversy. Somehow I doubt that the task force’s preliminary proposal on the matter is going to resolve it.

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