c. Findings and Analysis 304. ODIHR has not undertaken a comprehensive analysis of whether each detainee subject to trial by a military commission is a civilian. The Guantánamo military commissions have been given jurisdiction over “unlawful enemy combatants” in the MCA 2006 and over “unprivileged enemy belligerents” in the MCA 2009. As discussed in the introduction of this report, these terms do not encompass privileged combatants and can be interpreted to encompass individuals who have never committed a belligerent act or who have never directly supported hostilities against the United States. Hence, these Acts grant jurisdiction over civilians, including civilians who did not directly participate in hostilities.683 305. Trials of civilians by military commissions should be exceptional, such as where they are “necessary and justified by objective and serious reasons”.684 In May 2009, President Obama said that in comparison to federal courts, military commissions: (1) are “an appropriate venue for trying detainees for violations of the laws of war”; (2) “allow for the protection of sensitive sources and methods of intelligence-gathering”; (3) “allow for the safety and security of participants”; and (4) allow “for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts”.685 ODIHR considers that each of these justifications run contrary to positions and practices that point to the ability of federal courts to try Guantánamo detainees. 306. First, as to the assertion that military commissions are the appropriate venue for trying alleged violations of the law of war, it is notable that ordinary civilian courts have been treated as appropriate venues for such offences. President Obama and the United States Department of Justice had decided in 2009 that the 9/11 suspects would be tried in federal courts in Manhattan, but pressure from opponents resulted in a reversal of this decision in favour of trials by military commissions.686 Additionally, the prosecution of those responsible for the bombings of the US Embassies in Kenya and Tanzania in 1998 took place in federal courts and some individuals involved in the U.S.S. Cole attack (with which some of Al-Nashiri’s charges are associated) were indicted by a Grand Jury in New 683 See the introduction of this report for additional information on this issue. See, also, United States District Court for the District of Columbia, In re Guantánamo Detainee Cases, Nos. CIV.A.02–CV–0299CKK, op. cit., note 51; MCA 2006, § 948a(1)(ii); Wolfowitz, “Memorandum: Order Establishing Combatant Status Review Tribunal”, op. cit., note 49; United States Supreme Court, Hamdi v. Rumsfeld, op. cit., note 47; MCA 2009, § 938(7); Olson, “Guantánamo Habeas Review”, op. cit., note 54, pp. 19-21; Ryan Goodman, “The Detention of Civilians in Armed Conflict”, The American Journal of International Law, Vol. 103, No. 48, 2009, pp. 61-63, <http://www.law.harvard.edu/faculty/rgoodman/pdfs/RGoodmanCivilianDetentionAJIL.pdf>; Melzer, “Interpretive Guidance on the Notion of Direct Participation in Hostilities”, op. cit., note 45, pp. 83-84. 684 UN HRC, General Comment No. 32, op. cit., note 648, para. 22. 685 United States President Barack Obama, “Remarks by the President on National Security”, The White House website, 21 May 2009, <http://www.whitehouse.gov/the-press-office/remarks-president-national-security-5-21-09>. 686 United States Attorney General Eric Holder, “Attorney General Announced Forum Decisions for Guantanamo Detainees”, United States Department of Justice website, 13 November 2009, <http://www.justice.gov/opa/speech/attorney-generalannounces-forum-decisions-guantanamo-detainees>; Charlie Savage, “Accused 9/11 Mastermind to Face Civilian Trial in N.Y.”, The New York Times website, 13 November 2009, <http://www.nytimes.com/2009/11/14/us/14terror.html?pagewanted=all&_r=0>; Kenneth R. Bazinet, Adam Lisberg and Samuel Goldsmith, “White House Asks Justice Department to Look for other places to hold 9/11 Terror Trial”, New York Daily News website, 28 January 2010, <http://www.nydailynews.com/news/crime/white-house-asks-justice-department-places-hold-9-11terror-trial-article-1.457546>. 132