...But the commissions were never completely dismantled, and, in fact, continued despite the administration’s suspension of the trials. In the case of Ali Hamza Ahmed Sulayman al Bahlul, for example, an alleged al-Qaeda media director who was convicted and sentenced to life in prison by a military commission in November after he boycotted the trial and refused to present a defense, the government is now seeking to “finalize and approve his conviction and sentence,” said David Frakt, his military defense lawyer. The commission’s “convening authority” can either approve the conviction and sentence, or can amend it or grant clemency. “It’s interesting that they continued to press forward despite the suspension,” said Frakt.
Then last week, The Miami Herald reported the appointment of a new chief prosecutor, John Murphy, also suggesting the Obama administration plans to continue the commissions. Murphy was among the team of military prosecutors in the case of Salim Hamdan, Osama bin Laden’s driver. That case is not widely considered a success, however. Prosecutors had argued for a 30-year sentence, but Hamdan was convicted last summer only of supporting terror, rather than committing any terrorist acts, and sentenced to time served plus less than six months. He returned to his native Yemen last year.
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But there are other suggestions that they will go on. On Thursday, a military judge ordered that a hearing in the military commission case of Ahmed Darbi, accused of being a member of Al Qaeda in large part because his brother-in-law was one of the 9/11 hijackers, will go forward as originally scheduled on May 27. Darbi’s lawyers had asked for the hearing to be delayed until July to give the Obama administration time to decide how to proceed with his case, which they claim is unfounded. Darbi says he was tortured at the Bagram air base in Afghanistan, and witnessed the beating to death of a Bagram detainee whose murder by interrogators was later confirmed in a Defense Department report.
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“The president has the authority to pull the plug on this,” said Ramzi Kassem, Darbi’s lawyer and a teaching fellow at Yale Law School. “Our position has always been that even with a very fair military judge and with highly intelligent and impartial military jurors, the military commission system is rigged and cannot be fair to the accused.”
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“No one should be tried in these courts,” says Kassem. “They were set up for one reason alone: to whitewash torture.”
Michael Scharf, a law professor at Case Western Reserve University and expert on international war crimes tribunals, agrees that revival of the military commissions “would be such a mistake.”
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Frakt, the military defense lawyer who’s representing two detainees before military commissions, said that even if the Obama administration improves the commissions by changing some of the rules, it won’t solve the problem. “They can certainly improve the commissions by changing the regulations but I don’t think they can get them to the point where they will achieve international acceptance,” said Frakt.
“Obama talked about making a change, a break from the past. So if he suddenly says we can proceed under the Military Commissions Act and just tinker at the margins, that will be perceived as really selling out his principles for political expediency,” said Frakt. “The idea that ‘oh, well, you know, we looked at trying these people in federal court but it was too hard, so we’re going to use military commissions,’ that’s absolutely appalling.”...
http://washingtonindependent.com/42646/obama-appears-poised-to-renew-military-commissions