The Honorable Duncan Hunter
Chairman
Committee on Armed Services
2120 Rayburn House Office
Building
Washington, D.C.
20515
The Honorable Ike Skelton
Ranking Member
Committee on Armed Services
2206 Rayburn House Office
Building
Washington, D.C. 20515
RE: Need to Question
Judge Advocates General on the Pervasive Problems in the Draft White House
Proposal on Detainees
Dear Chairman Hunter and Congressman Skelton:
The American Civil Liberties Union strongly urges you to use the Armed
Services Committee hearing this afternoon to question witnesses about the
pervasive problems in the Administration’s internal draft bill. As reported in the New York Times today,
a draft White House bill would:
- gut the enforceability of important Geneva Convention protections,
- allow the use of evidence obtained through federal government abuse and cruelty
towards persons during interrogations,
-
deny a defendant access to the evidence being used against him, and
- allow the use of the types of hearsay evidence that would be banned from every
military or civilian court in America.
If enacted by Congress, the draft White House bill would
violate the Geneva Conventions because of the absence of basic due process of
law--and make it all but certain that the Supreme Court will reverse any
convictions based on these illegal procedures.
Specifically, the proposed White House bill would:
Gut the enforceability of important Geneva Conventions
protections. The draft White
House bill reportedly provides that the Geneva Conventions “are not a source of
judicially enforceable individual rights.”
The objective of this provision is to take away the ability of American
military and civilian courts to hear the claim by any person that the federal
government violated even the most basic protections of the Geneva
Conventions. Since the Geneva
Conventions were ratified by the Senate and given effect in U.S. law by
Congress, the draft White House bill would destroy the system of checks and
balances for enforcement of the Geneva Conventions protections. If Congress shuts down the courts on
enforcement of Geneva Conventions protections, then there is no check against
the federal government violating this important federal law.
Ironically, the Court of Appeals
decision that the Supreme Court reversed in Hamdan v. Rumsfeld used the
exact language of the White House proposal in holding that the Geneva
Conventions were not a source of judicially enforceable individual rights. However, the Supreme Court specifically
rejected and reversed that holding of the Court of Appeals. Thus, the draft White House bill
asks Congress to reverse, at least in part, the most important decision of the
Supreme Court’s most recent term.
Explicitly authorize the federal government to use
evidence obtained by abuse, cruel, inhuman, or degrading treatment. Congress has never authorized federal
prosecutors to use evidence obtained by torture or abuse in any criminal
trial. Under this proposal,
even evidence obtained through torture committed by countries such as Syria or
Saudi Arabia could be considered by the federal government as the basis of a
conviction in an American trial. An
overwhelming bipartisan majority of Congress passed the McCain amendment that
reinforced the longstanding ban on the federal government engaging in torture or
cruel, inhuman, or degrading treatment.
However, this provision in the draft White House proposal would provide
an incentive to violate the McCain amendment and a reward for past violations of
laws against torturing or abusing detainees. The federal government would have a new
incentive to continue its practice of kidnapping persons and sending them to
countries that engage in torture, as a way of obtaining additional
evidence. And it would allow
convictions based on statements made by persons who may have been willing to
make up anything to have the torture and abuse stop.
Exclude defendants from their own trial, and allow
convictions based on secret evidence. Justice Stevens has warned the
Administration that it has failed to establish how there could be
"circumstances in which it would be 'fair' to convict the accused based on
evidence he has not seen or heard" -- a possibility that Justice Kennedy agreed
was "troubling." Despite this, the
Administration is stubbornly adhering to its proposal to exclude defendants from
their own trial and to use secret evidence whenever "necessary," at most
requiring a declassified summary be provided to the defendant. Based on this Administration's penchant
for secrecy and the ACLU’s experience in reviewing more than 100,000 pages of
torture documents--which are typically heavily redacted--produced pursuant to
our FOIA request, this procedure would likely result in convictions
of detainees who have been excluded from their own trial and
seen little, if any, of the evidence against them. And, in contrast to the
carefully-crafted protections of the Classified Information Procedures Act and
the procedures under the Uniform Code of Military Justice (which closely tracks
the Classified Information Procedures Act), the Administration's standard for
allowing exclusion and secret evidence does not appear to require consideration
of the impact on the defendant's ability to prepare his defense.
Allow the use of hearsay evidence that would be
banned from every military or civilian court in America. One purpose of the congressional
hearings should be to determine whether some narrow additional exceptions to the
hearsay rule are necessary to accommodate the reality of battlefield capture and
detention. Unfortunately, rather
than discuss reasoned exceptions to our centuries-old prohibition on the use of
hearsay, the Administration is opting for a wholesale rollback of that
protection. The procedural
modifications to the use of hearsay are too important to be left to the
discretion of a single judge, as the Administration proposes -- particularly one
who may not have sufficient independence. The use of hearsay could compound
the problem of secret evidence by allowing the introduction of anonymous
allegations relayed secondhand--or even thirdhand--by hearsay witnesses. Similarly, broad use of hearsay
testimony may gut protections against the use of information gained through
coercion and torture; secondhand witnesses will not be able to guarantee (and
may not even know) whether information was originally obtained through torture
and coercion.
The result of the draft White House proposal would be a violation of
Common Article 3 of the Geneva Conventions and a reversal of any convictions
obtained under the procedures of the White House proposal. There is no reason for Congress to
ratify broken and illegal procedures that abandon basic American due process and
which will only delay convictions of any persons who committed crimes against
the United States.
The ACLU strongly urges you to use the hearing this afternoon as an
opportunity to question the Judge Advocates General of the four services on the
problems with the draft White House bill.
Sincerely,
Caroline Fredrickson
Director
Christopher E. Anders
Legislative Counsel
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