ACLU Urges Senate to Reject Draft White House Proposal on Detainees

August 2, 2006 12:00 am

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WASHINGTON – The American Civil Liberties Union urged lawmakers to ensure that any legislation regarding criminal trials of detainees being held indefinitely by the federal government includes the basic due process protections valued by all Americans. Both the Senate Armed Services and Judiciary Committees met today to examine the issue. Top government officials, including Attorney General Alberto Gonzales, Deputy Defense Secretary Gordon England and the Judge Advocates General for the four armed services testified today on the administration’s position.

“Even during times of conflict, Americans expect the president and Congress to uphold and respect the rule of law,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The Supreme Court recognized the military commissions created by President Bush violated the law. Congress must reject any proposal that fails to meet the recognized legal standards embodied in the Uniform Code of Military Justice and the Geneva Conventions.”

In late June, the Supreme Court found in Hamdan v. Rumsfeld that the military commissions at Guantanamo created by President Bush were invalid. The court said that the rules violated Common Article 3 of the Geneva Conventions regarding the treatment of detainees being held indefinitely.

The White House has circulated draft legislation that would essentially ratify the illegal military commissions, and fail to meet the standards prescribed by the Supreme Court. Specifically, the White House proposal would: gut the enforceability of important Geneva Convention protections; allow the use of evidence obtained through cruel, inhuman, and degrading treatment during interrogations; take the unprecedented step of allowing the federal government to convict a defendant based on secret evidence; bar a defendant from being present at his own trial; and allow the use of the types of hearsay evidence banned from every military and civilian court in America.

Even if such legislation is enacted, the ACLU said, the Supreme Court would likely invalidate it. In recent testimony before the Senate Armed Services Committee, the Judge Advocates General for the four military services urged close adherence to the court-martial procedures, a system the Supreme Court found provides sufficient due process protections. Additionally, both the Department of Defense and the Attorney General stated the protections of Common Article 3 of the Geneva Conventions must be afforded to detainees held both by the Defense Department and the CIA.

“After being rebuked by the Supreme Court, the White House finally agreed that basic Geneva protections apply to all detainees, but now it seeks to undermine those protections,” said Christopher Anders, an ACLU Legislative Counsel. “As Congress deals with this issue, it must enact changes consistent with the due process rights that all Americans cherish. Lawmakers shouldn’t waste their time working on proposals that the Supreme Court will overturn.”

The ACLU Letter on the draft White House proposal on detainees is available at:

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