Critics Respond To Pentagon Tribunal Rules

	Posted on Fri, Jan. 19, 2007
	Critics react to Pentagon tribunals A Miami Herald roundup of verbatim reaction to the Pentagon's new manual for prosecuting suspected terrorists as alleged war criminals at Guantánamo Bay, Cuba: • Martin S. Pinales, president, National Association of Criminal Defense Lawyers: 'Hearsay, double hearsay, and coerced confessions are all admissible, including statements extracted from witnesses by torture. Given the shaky constitutionality of the Military Commissions Act, the detainees' habeas corpus right to challenge their detention -- and the validity of any conviction -- is more important than ever.'' • Colonel Dwight H. Sullivan, U.S. Marine Corps Reserves, Chief Defense Counsel: ``The rules appear carefully crafted to ensure than an accused can be convicted -- and possibly executed -- based on nothing but a coerced confession. 'The rules would allow an accused to be executed based on nothing but hearsay. This is inconsistent with the approach recommended by Senator Lindsey Graham. Senator Graham, a veteran military lawyer, stated that although there may be a need to have additional exceptions to the hearsay rule, it would serve us well as a country to set down and come up with a hearsay rule that has exceptions for the needs of the war on terror, not just ignore the hearsay rule in general.' (statement, Senate Armed Services Committee hearing, Aug. 2, 2006) ``The rules provide no protection against unreasonable searches and seizures -- even searches that would intrude into a person's body. Under the Manual, a defendant can have his body cavities forcibly searched, without his consent, and any evidence derived thereof may be admitted against him. A defendant could be subjected to risky surgery in an effort to try to obtain something that the prosecution wants to see, like a piece of shrapnel. A defendant has absolutely no right to object to such conduct under these rules and the authorities don't even need to obtain a search warrant from a judge. 'The rules' broad protections for classified information threaten to swallow everything. These rules are particularly scary coming in the wake of new Guantánamo classification guidelines that make even the prisoners' own name classified as `SECRET.' ``The rules violate the principle that the jury shouldn't be allowed to see anything that the defendant can't see. Witnesses can be shielded so that the defendant can't see them, but the jury can. ``The rules favor the prosecution over the defense. For example, the prosecution can base its entire case on hearsay without calling witnesses, but if the defendant offers his own hearsay statement without taking the stand, the judge must tell the members, essentially, that the evidence isn't believable.'' ``The rules require the commission to accept the fundamentally-flawed CSRT [Combatant Status Review Tribunal] process determination that a person is an unlawful enemy combatant is dispositive. Once a CSRT has made a determination, the military commission cannot look behind that finding, even if the CSRT proceeding relied on evidence obtained by torture or other unreliable evidence. • Sen. Christopher Dodd, D-Conn.: ``I believe that the manual is a deeply flawed document on first review. I am particularly concerned about the limits on the independence of military judges, the lack of safeguards against coerced evidence being introduced in trial, and the limitations on defense access to witnesses and evidence. ``I feel strongly that it is more imperative than ever that Congress consider legislation to amend the Military Commissions Act of 2006 to address its flaws and those contained in the manual implementing the MCA. ``I am currently working with Senators Leahy and Feingold and others to review the Effective Terrorists Prosecution legislation, which I introduced last December, and will introduce a new bill in the coming days to address flaws in the MCA and implementing manual that are impediments to the effective and credible prosecution of suspected terrorists.'' • Jumana Musa, Advocacy Director for Domestic Human Rights and International Justice, Amnesty International USA: ``If the goal is to bring people to justice, rather than tinkering with a system that was struck down by the U.S. Supreme Court and hastily passed by Congress, the United States should use the system that is in place -- the federal courts, as their procedures meet fair trial standards. Amnesty International regrets that the Department of Defense declined to subject the new military commissions rules to a notice and comment period, which would have allowed relevant legal and human rights experts the opportunity to provide input into the system. Amnesty International has repeatedly raised concerns about the commissions rules and finds that with today's revised rules there remain fundamental issues that will prevent these reconstituted military commissions from meeting internationally recognized fair trial standards. ``Although Congress has authorized this ill-advised system that gives fewer rights and protections to foreign nationals than to U.S. citizens, that does not guarantee that the system will pass judicial scrutiny. While there are some notable improvements over the old system that the Supreme Court struck down, the changes do not go far enough to ensure the due process rights of those who will face the system. Civilians picked up far from any battlefield still may be tried in a military system of justice, and defendants can be convicted on evidence obtained through coercion or cruel, inhuman and degrading treatment that would be inadmissible in any other U.S. judicial forum. The commissions are not bound by any precedent or case law, making the mounting of an effective defense extremely difficult. ``Amnesty International renews its call to scrap the new military commissions system and instead to try people accused of terrorism-related offenses in federal court. Rather than proceed with these commissions, the United States should use established systems of justice whose standards meet the requirements for fair trials.'' • Nan Aron, president, Alliance for Justice: ``These rules permit death penalty verdicts against detainees who have confessed under torture and coercive interrogation. This is certainly not justice and, in fact, is little more than a rejection of American values. It's unconscionable that the Bush administration drafted the rules in secret with no input from Congress or the public.'' • Elisa Massimino, Washington director, Human Rights First: ``No civilized nation permits convictions to rest on coerced evidence, and reliance on such evidence has never been acceptable in military or civilian courts in this country. There's a good reason why such tainted evidence is not allowed. It is inherently unreliable, and permitting its use debases the military justice system and dangerously undermines the prohibition on torture and abusive treatment. The fact that the military commission rules allow such evidence to be used calls the legitimacy of the entire system into question.''