Section 2 . . . (f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.
Section 4 . . . (c) . . . (3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.Taken together, these provisions leave open three possibilities for trial:
(1) Prosecution before an ordinary (federal Article III) civilian court (or a special court presided over by an Article III judge but following the normal procedures of civilian federal courts in hearing ordinary criminal cases);
(2) Prosecution before a court martial under the rules of the Uniform Code of Military Justice (UCMJ);
(3) Prosecution before a special military commission that nonetheless affords the same core protections as a court martial under the UCMJ.
As a practical matter, however, I believe that political pressure will lead the Obama Administration to conduct prosecutions, if any, before Article III courts alone. There is no real difference between options (2) and (3). But for that very reason, the Administration will almost certainly want to avoid the stigma of using a "special" military commission. That would look too much like the Bush approach.
Meanwhile, for those in the know, a court martial under the UCMJ would be acceptable--and legal under common article 3 of the Geneva Conventions--but the problem is that the difference between a court martial and a military commission is not well understood by the international public at large. Each would be portrayed as something falling short of an ordinary civilian court, and it is important to remember that a basic goal of ordering the closing of Gitmo is to win a symbolic victory in the worldwide court of public opinion. Indeed, the Executive Order essentially says as much by invoking the "foreign policy interests" to be served by closing the Gitmo detention facility.
In principle, of course, the Administration could build and maintain a humane prison at Gitmo, with all the procedural due process imaginable. But the President is aware that ANY prison at Gitmo is now irrevocably tainted by the Bush policies. So too, I think, will be ANY military procedure for determining guilt for war crimes. Thus, while the Executive Order leaves open the possibility of trials outside of Article III fora, it would be very surprising if the Obama Administration were actually to conduct any.
Posted by Mike Dorf