House Hears Government Testimony On Unconstitutional Military Commissions

July 24, 2009 12:00 am

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WASHINGTON – The House Armed Services Committee is holding a hearing today on the proposed continuation of the controversial Guantánamo military commission system. The system, which allows coerced confessions and hearsay evidence to be admitted during trial, is being discussed by two government witnesses: Jeh Johnson, General Counsel for the Department of Defense (DOD) and David Kris, Assistant Attorney General for National Security, who both testified earlier this month before the Senate Armed Services Committee. After immediately suspending the military commissions upon taking office in January, President Obama is now moving toward reviving the unconstitutional system.

“The military commission system directly violates America’s most basic principles of democracy and justice,” said Michael W. Macleod-Ball, Acting Director of the ACLU Washington Legislative Office. “A court system set up solely to achieve easy convictions is not a system we can trust. The United States criminal justice system has proven itself perfectly capable of overseeing terrorism cases and our federal courts have tried and convicted over 200 international terrorism crimes. By contrast, the military commissions have only successfully tried and convicted three. Continuing this deeply flawed and fundamentally unfair system would continue to undermine our country’s commitment to the rule of law.”

The constitutional rights of detainees in military commission trials have been a point of contention between the Justice Department and the Department of Defense. In a Senate Armed Services Committee hearing on Capitol Hill about the Guantánamo military commissions earlier this month, Kris testified that the Constitution’s Due Process Clause would indeed apply to military commission trials. Defense Department officials, however, have long sought to deny Guantánamo detainees due process rights in order to facilitate convictions through coerced evidence.

Last week, the ACLU filed a Freedom of Information Act (FOIA) request demanding disclosure of a May 2009 legal memo from the Justice Department Office of Legal Counsel (OLC) reportedly addressing the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings in the U.S. The memo reportedly also addresses the admissibility of statements obtained through coercion in those proceedings. However, the OLC memo was not made available to Congress as it debated changes to the military commissions system.

On Thursday night, the Senate passed its version of the defense authorization bill that includes provisions addressing changes to the military commissions. The House version was voted on earlier this month. The bills will be reconciled during conference sometime in the next month.

“The Justice Department has already testified that the Due Process Clause of the Constitution applies to military commissions and that the use of coerced evidence would likely be found unconstitutional. But the defense authorization bill passed by the Senate Thursday night violates this provision of the Constitution. It is time for Congress and the administration to focus on what they were elected to do and enforce our Constitution rather than continuing a system that erodes our rule of law,” said Christopher Anders, ACLU Senior Legislative Counsel. “Furthermore, hiding Justice Department legal opinions from Congress and the American public was an unacceptable tactic of the Bush administration that the Obama administration should not be repeating.”

To read a coalition letter to the Senate regarding the military commission language in the National Defense Authorization Act, go to: /safefree/detention/40345leg20090716.html

The ACLU’s FOIA request is available online at:

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