View Full Version : Pentagon Sets Rules For Detainee Trials

01-18-2007, 09:14 PM
Pentagon Sets Rules for Detainee Trials


Associated Press Writer
Jan 18, 6:55 PM EST

WASHINGTON (AP) -- The Pentagon set rules Thursday for detainee trials that could allow terror suspects to be convicted and perhaps executed using hearsay testimony and coerced statements, setting up a new clash between President Bush and Congress.

The rules are fair, said the Pentagon, which released them in a manual for the expected trials. Democrats controlling Congress said they would hold hearings and revive legislation on the plan, and human rights organizations complained that the regulations would allow evidence that would not be tolerated in civilian or military courtrooms.

According to the 238-page manual, a detainee's lawyer could not reveal classified evidence in the person's defense until the government had a chance to review it. Suspects would be allowed to view summaries of classified evidence, not the material itself.

The new regulations lack some protections used in civilian and military courtrooms, such as against coerced or hearsay evidence. They are intended to track a law passed last fall by Congress restoring Bush's plans to have special military commissions try terror-war prisoners. Those commissions had been struck down earlier in the year by the Supreme Court.

At a Pentagon briefing, Dan Dell'Orto, deputy to the Defense Department's top counsel, said the new rules will "afford all the judicial guarantees which are recognized as indispensable by civilized people."

In an interview, Brig. Gen. Thomas Hemingway, legal adviser to the Pentagon's office on commissions, said he doubted that most cases would rely solely on coercive or hearsay evidence.

"These case are pretty complex and it's not going to sink or swim, I don't believe, on a single statement," he said.

Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, said he planned to scrutinize the manual to ensure that it does not "run afoul" of the Constitution.

"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," said Elisa Massimino, Washington director of Human Rights First.

Officials think that with the evidence they have now, they could eventually charge 60 to 80 detainees, said Hemingway said. The Defense Department is currently planning trials for at least 10.

There are almost 400 people suspected of ties to al-Qaida and the Taliban being held at the military's prison in Guantanamo Bay, Cuba. About 380 others have been released since the facility was opened five years ago.

Last September, Congress - then led by Republicans - sent Bush a new law granting wide latitude in interrogating and detaining captured enemy combatants. The legislation prohibited some abuses of detainees, including mutilation and rape, but granted the president leeway to decide which interrogation techniques were permissible.

In outlining the maximum punishment for various acts, the new manual includes the death penalty for people convicted of spying or taking part in a "conspiracy or joint enterprise" that kills someone. The maximum penalty for aiding the enemy - such as providing ammunition or money - is lifetime imprisonment.

As required by law, the manual prohibits the use of statements obtained through torture and "cruel, inhuman or degrading treatment" as prohibited by the Constitution. But it allows some evidence obtained through coercive interrogation techniques if obtained before Dec. 30, 2005, and deemed reliable by a judge.

The Detainee Treatment Act, separate legislation championed in 2005 by Sen. John McCain, R-Ariz., prohibited the use of cruel, inhuman or degrading treatment of military and CIA prisoners.

Congress and the White House agreed last year that hearsay - a witness quoting someone else - can be allowed as evidence if a judge rules the testimony is reliable. According to the manual, this is necessary because witnesses - such as military personnel or foreigners - may not be available to testify.

The Pentagon's Dell'Orto said that since both sides of the case can admit hearsay evidence, that "levels the playing field."

Under the rules, the accused will be allowed to know about all evidence that is provided in the trial, Dell'Orto said. They will not be allowed to see classified material, but will be given an unclassified summary or substitute, with the judge first determining whether the summary sufficiently represents the classified material.

"When you're in the middle of a war against this enemy, you need to be particularly concerned about the disclosure of that evidence," Dell'Orto said of classified materials.

Sen. Christopher Dodd, D-Conn., said he believes the Pentagon's top lawyers assigned to defend detainees were excluded from the preparation and review of the manual. Last fall, critics of Bush's plan for military commissions charged that the administration ignored the advice of uniformed legal experts.

Dodd, a presidential candidate, said he will introduce a bill addressing flaws in the manual "that are impediments to the effective and credible prosecution of suspected terrorists."

The document was hailed by Rep. Duncan Hunter of California, top Republican on the House Armed Services, who said, "Khalid Shaikh Mohammed, the alleged mastermind behind the 9/11 attacks, and his cohorts are a step closer to trial."