White House bid to let military commissions try detainees in absentia draws fire

[JURIST] Legal experts inside and outside government are criticizing provisions of a draft bill [PDF text] circulated by the White House [JURIST report] Wednesday that, among other things, would allow US military commissions [JURIST news archive] to proceed against an accused "enemy combatant" without the defendant being present, if necessary to protect national security. In absentia proceedings would only be allowed, however, if a defendant's lawyer were present throughout the trial, and if evidence used against the defendant was classified, the defense would be given an unclassified summary of that evidence, if available. The draft bill states: "no evidence shall be admitted to which the accused has been denied access if its admission would result in the denial of a..." [blacked out - likely, "fair trial"]. The suggested scheme would be unique among Western war crimes tribunals and is not consistent with the Uniform Code of Military Justice (UCMJ) [text]. The draft defines "enemy combantants" broadly as those "engaged in hostilities against the United States or its coalition partners who has committed an act that violates the law of war and this statute", potentially including US citizens.

The Enemy Combatants Military Commissions Act of 2006 [draft text, PDF] purportedly expands those rights enjoyed by terrorist detainees under the former tribunal scheme, but the draft bill expressly rejects the procedural framework of the UCMJ/Manual for Courts Martial, which provides court-martial defendants with considerably more protection than the military tribunal scheme struck down by Hamdan v. Rumsfeld [text]. The draft bill expressly rejects the use of evidence obtained through torture, with torture defined by 18 USC 2340 [text], and but would grant judges discretion to reject - or, theoretically, allow - other evidence obtained through coercion. The draft also permits a military commission judge to admit hearsay evidence if it is deeemed relevant and reliable. The text indicates that the US Circuit Court of Appeals for the District of Columbia would have appellate review over the final decisions of the military commissions, and that the Supreme Court would be able to grant certiorari to review.

When asked about the draft bill during a press briefing [transcript] on Wednesday, Press Secretary Tony Snow suggested that the administration is open to negotiations over controversial aspects of the draft bill, and that he is not sure when the draft bill will become a final proposal. The New York Times has more.



 

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