Senate Holds Hearing On Continuation Of Fatally Flawed Military Commissions

Use Of “Coerced Evidence” Makes Them Unconstitutional, Says ACLU

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WASHINGTON – The Senate Armed Services Committee will hold a hearing today on the proposed continuation of the controversial Guantánamo military commissions system. The chairman of the committee, Senator Carl Levin (D-MI), has inserted language related to military commissions into the current Senate draft of the Defense Authorization bill and President Obama has recently declared his intention to revive the fatally flawed commissions after suspending them by executive order his first day in office.

In addition, the American Civil Liberties Union is scheduled to testify on military commissions at a separate hearing before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties Wednesday morning.

“The military commissions are unconstitutional and were created not to enforce the law but to circumvent it,” said Christopher Anders, ACLU Senior Legislative Counsel. “Bringing back the military commissions would signal to the rest of the world that the United States continues to flout the rule of law.”

The U.S. Supreme Court ruled the first version of the Bush administration’s military commissions illegal. President Obama, as a candidate, took the position that the second and current version of the military commissions, as implemented through the Military Commissions Act, should be rejected, but he is now pushing Congress to help revive these proceedings with certain changes.

While both the president’s proposal and the new legislation passed by the Senate Armed Services Committee would bar evidence obtained through torture or cruel, inhuman, or degrading treatment, they would still allow for the admission of other “coerced evidence.” That means that forced confessions and hearsay evidence that would be barred from every U.S. courtroom and court-martial would still be admissible. By contrast, the Constitution, the Federal Rules of Evidence used in federal criminal courts, and rules for military courts-martial prohibit all evidence obtained by coercion. The Wall Street Journal and the New York Times reported last week that a recent undisclosed Justice Department Office of Legal Counsel opinion concluded that the use of coerced evidence in at least some military commission proceedings would be unconstitutional.

“The military commissions are fatally flawed and no amount of tinkering will fix them,” Anders added. “The system is set up to ensure convictions, not give defendants an impartial hearing. When the military commissions stack the deck against a fair trial, how can we trust their outcomes?”

In addition to being unconstitutional, the military commissions are unnecessary. Under our criminal justice system, the government already has sufficient tools at its disposal to prosecute terrorism suspects, including a wide array of criminal laws that even prohibit activities that are often only remotely related to terrorism. Civilian and military courts are perfectly capable of dealing with classified evidence and protecting national security while also providing fundamental rights. The United States has successfully prosecuted more than 200 defendants in international terrorism cases in federal courts for crimes committed both before and after 9/11. By comparison, only three terrorism suspects were successfully prosecuted in the military commissions system at Guantánamo.

“President Obama put an end to the use of torture and abuse because he knew that it was contrary to our most fundamental values. Yet the president and Congress are now considering allowing forced confessions – the fruit of some of those very same practices – to be used against defendants,” said Anders. “Under the new legislation, involuntary confessions forced out of witnesses at Abu Ghraib, Guantanamo, and other torture sites could be used to convict people. Due process cannot exist when we allow hearsay and coerced evidence in our courtrooms, and justice cannot exist without due process. The military commissions must be shut down for good if America is to repair its legacy as an international beacon of human rights and civil liberties.”