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Military Commissions Redux


Wednesday, Aug. 02, 2006

Last week, the press was leaked a draft copy of the "Enemy Combatant Military Commissions Act of 2006": a White House proposal that, if passed by Congress, would authorize military commissions to try suspected terrorists.

Thirty-two pages long, containing fifty-two separate sections, the proposed bill was drafted in response to the Supreme Court's recent decision in the case of Hamdan v. Rumsfeld. In a stunning rebuke to claims of unilateral presidential power, the Court held that the existing military commissions were illegal under both domestic law and the Geneva Conventions.

But if Hamdan was a defeat for the Executive, the draft legislation that the White House is discussing shows thinly-veiled contempt for the Court. While the proposed bill accepts the Court's holding that Congress must authorize military commissions, it ignores or evades just about every other aspect of the Hamdan ruling. Simply put (and to avoid a more colorful metaphor), it's the law equivalent of a sneer.

Not only would the proposed legislation revive - in barely altered form - the military commissions that the Supreme Court struck down in Hamdan, but it would also extend congressional authorization to the whole Guantanamo package. The draft bill would allow the administration to detain people indefinitely without charge, obviating any need to bring them to trial.

Compared to authorizing indefinite preventive detention, the military commissions themselves are a secondary issue: the tail of the draft legislation wagging the dog. Only ten detainees have been charged, while several hundred others have been held without charge on Guantanamo.

But even though the trials are less meaningful in numerical terms, they remain important as a matter of principle. And judged on basic principles, the Administration's draft proposal falls far short. While the proposal's due process failings are many, I'll focus in this column on one: its section on hearsay evidence.

Hearsay Evidence

Few trial rights are as basic as the right to confront one's accusers. Unless a defendant is able to challenge the source of statements that incriminate him, he is unable to expose lies, exaggerations, or innocent misstatements.

In crafting its proposed legislation on military commissions, the Administration would deny defendants this basic right. The draft bill would allow in hearsay evidence - out-of-court statements meant to prove the defendant's guilt - unless the military judge presiding over the commission found such evidence to be unreliable or lacking in probative value.

Unfortunately, the record shows that military commissions' likely reliance on hearsay is no mere conjecture. Already, the administrative proceedings (called Combatant Status Review Tribunals, or CSRTs) that have assessed the status of Guantanamo detainees have been heavily tainted by hearsay. Since the alleged terrorism links to be examined by the proposed commissions are much the same as those asserted in the CSRTs, it is logical to assume that the government will largely seek to rely on the same sorts of evidence.

Commander James Crisfield, a judge advocate general who acts as legal adviser to the CSRTs, has underscored the tribunals' reliance on hearsay. As he complained about one of the tribunal's rulings: "the evidence considered persuasive by the tribunal is made up almost entirely of hearsay evidence recorded by unidentified individuals with no firsthand knowledge of the events they describe."

Worse, the ultimate sources of these statements are people in U.S. custody who could easily be brought to testify at trial. In some cases, they are other detainees held at Guantanamo; in others, they are thought to be detainees in CIA custody.

CIA Detainees

Last April, Director of National Intelligence John Negroponte publicly acknowledged that the CIA is holding some three dozen al Qaeda suspects in secret prisons abroad. An ugly fact that he left out, however, has been repeatedly leaked to the media: Some of these detainees have been subject to torture.

Under coercion, the CIA's prisoners are said to have provided abundant information about the workings of al Qaeda, but at least some of this information has proved unreliable. A particularly notorious case is that of detainee Ibn al-Shaykh al-Libi, arrested in late 2001, handed over to Egypt for a time, and later returned to CIA custody.

According to several U.S. officials cited in the Washington Post, al-Libi's statements provided the basis for the Bush Administration's prewar claim that Osama bin Laden had collaborated with Iraq. Although he was later said to have recanted his statements, the damage was already done.

Access to CIA prisoners like al-Libi has been an issue in more than one federal trial. Both Zacarias Moussaoui and Uzair Paracha, two defendants ultimately convicted of terrorism, requested that alleged September 11 mastermind Khalid Sheikh Mohammed and others be brought to court to provide evidence in their defense. But the Administration has refused to allow any of the CIA detainees into court, and no court has successfully challenged this position.

Incriminating Hearsay

With the commissions, however, the Administration proposes to go an important step farther than it has in federal court. At issue is not just possibly exculpatory evidence, but incriminating evidence as well.

The commissions' proposed rules would allow for a CIA interrogator or government expert to tell the court that a detainee -- say, Ibn al-Shaykh al-Libi - has implicated the defendant in a crime. And because of the commissions' restrictions on the defendant's access to classified information (again like the CSRTs), the defendant might not even obtain al-Libi's name.

Faced with hearsay accusations from an unknown source, the defendant might be unable to discredit even the most blatantly false claims. Such trials were once characteristic of the Inquisition; they are not justifiable now.

Joanne Mariner is a New York-based human rights attorney. Her previous columns on Guantanamo, Abu Ghraib, and the "war on terror" may be found in FindLaw's archive.

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