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U.S. Military Tribunals Can Use Hearsay, Secret Evidence
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| U.S. Secretary of Defense Donald Rumsfeld |
WASHINGTON,
March 22 (IslamOnline & News Agencies) - U.S. Defense Secretary
Donald Rumsfeld unveiled procedures for trials of suspected al-Qaeda
members by military commissions empowered to hand down death
sentences based on hearsay (secondary evidence, testimony) and
secret evidence.
Hearsay
allows information based on what someone else has said, in which
someone else can say, “I heard so-and-so say he heard someone else
say….” This type of evidence cannot be presented in civilian
criminal cases in the U.S., but is allowed in military
court-martials.
Rumsfeld's
rules were drafted in response to a presidential order five months
ago authorizing secret trials of al-Qaeda members suspected of
involvement in terrorist attacks against the United States or their
protectors.
The
commissions will consist of three to seven military officers and
will be headed by a military judge, he said. Judges and prosecutors
may remain anonymous throughout any trials.
The
procedures governing them requires a unanimous vote by the
commission, rather than only a two-thirds vote as originally
proposed.
A
two-thirds vote is required for convictions and all lesser
sentences.
Certain
basic rights, however, are reaffirmed in the rules - the presumption
of innocence, proof beyond a reasonable doubt, the right to counsel,
the right not to testify or incriminate oneself, or to be tried
twice for the same crime.
USA
Today reported that only non-U.S. citizens would be tried by the
tribunals under U.S. President George W. Bush's Nov. 13 order.
The
presiding officer can admit as evidence anything that would be
"of probative value to a reasonable person," a standard
that would allow hearsay and other evidence not admissible in a
civilian criminal court.
"In
wartime it may be difficult to locate witnesses or establish chains
of custody for documents," Rumsfeld said. "Critical
evidence that could protect the American people from dangerous
terrorists should not be excluded simply because it was obtained
under conditions of war."
The
new procedures allow a defendant to appeal a verdict to a
three-member commission appointed by the president, but not to an
independent body or civilian federal court.
The
proposed military commissions drew mixed reviews from commentators
and legal experts even before the official unveiling.
New
York-based Human Rights Watch (HRW), on publication of the Defense
Department's new rules, said they failed to meet the requirements of
the Geneva Conventions.
"In
America, we've never let our political leaders decide who is
guilty," said the group's Washington representative, Tom
Malinowski, as reported by the Washington Post. "That's been a
fundamental principle since 1789."
HRW
did concede, however, that the new regulations did "include
important due process protections."
"The
rules nevertheless fail to meet the core human rights requirement of
appellate review by an independent and impartial court, or to meet
the requirements of the Geneva Conventions," the advocacy group
said.
"The
Administration went a long way towards meeting human rights concerns
and preserving the reputation of U.S. military justice," said
U.S. program director for Human Rights Watch James Fellner.
"But, under the rules, the president still remains both
prosecutor and judge."
The
group noted that U.S. protests against others countries' use of
military tribunals without the right of appeal to civilian courts
will now sound hollow.
Amnesty
International said the new regulations violate suspects' rights in
many ways. The worst provision, the group said, is that convictions
could be appealed only to higher panels also named by the president,
rather than independent judicial bodies - a practice it said was
"deeply troubling," reported the Post.
There
will be four categories of prisoners: those deemed innocent and
released; those repatriated to their countries for trial; those
tried before military tribunals; and those detained without charge.
Human rights groups have expressed concerns about the last group.
"We're
concerned about this," said Vienna Colucci, a spokesman for
Amnesty International was quoted by the Post. "Those in custody
should be charged or released."
Michael
H. Posner, executive director of the Lawyers Committee for Human
Rights, said to the Post that the appeals process is flawed.
"History
tells us there is value in having an independent branch of
government reviewing the actions of the executive branch," he
said. "They're saying, 'Trust us, we'll be so fair there won't
be any problem.' But it's too much to expect there will never be a
case that should be overturned."
Francis
A. Boyle, an expert on the law of war at the University of Illinois,
said "You're going to have the Department of Defense defending,
the Department of Defense prosecuting and the appeals panels is the
Department of Defense."
Bush
told reporters Wednesday that the tribunals "are just an option
for us," and that he had no detainee in mind for assignment to
a military commission.
In
addition, Rumsfeld said that the public should not be concerned that
the procedures to be used in the tribunals differ in some respects
from the rules in ordinary U.S. criminal trials and in military
courts-martial. "The commissions are intended to be
different," he said.
Currently,
there are 300 detainees from the Afghan war at a U.S. naval base on
the southeastern tip of Cuba and 252 under the control of the U.S.
military in Afghanistan.
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