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Military commissions system 'broken': former Guantanamo prosecutor

[JURIST] A former prosecutor at Guantanamo Bay [JURIST news archive] told the House Judiciary Committee [official website] Wednesday that the military commission [JURIST news archive] system used to try detained enemy combatants is "broken beyond repair." In testimony [prepared remarks, PDF] at a hearing [materials] before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Lt. Col. Darrel Vandeveld, US Army Reserve Judge Advocate General Corps [official website], said that although he was a "true believer" when he was detailed to the detention facility, he had come to believe that the commissions undermined "the fundamental values ... upon which this great country was founded." Asked by the subcommittee to address the legal issues surrounding the continuance of the military commission system, Vandeveld said:

We do not need military commissions. They are broken and beyond repair. We do not need indefinite detention, and we do not need a new system of "national security courts." Instead, we should try those whose guilt we can prove while observing "the judicial guarantees which are recognized as indispensable by civilized peoples" — in other words, using those long-standing rules of due process required by Article III courts and military courts-martial — and resettle or repatriate those whom we cannot. That is the only solution that is consistent with American values and American law.

Vandeveld said that even the "good faith effort at revision" passed by the Senate Armed Services Committee [official website] last month leaves in place "provisions that are illegal and unconstitutional, undermine defendants' basic fair trial rights," and "harm the reputation of the United States." Vandeveld is the seventh military prosecutor to resign [LAT report] from his post at Guantanamo. The committee also heard testimony from Deborah Pearlstein [academic profile] from the Princeton University Program in Law and Public Affairs [academic website], Thomas Joscelyn [advocacy profile] of the Foundation for the Defense of Democracies [advocacy website] and Denise LeBoeuf [advocacy profile] from the American Civil Liberties Union [advocacy website].

On Tuesday, Retired Rear Admiral John Hutson [academic profile], formerly the US Navy's Judge Advocate General [official website], told [JURIST report] the Senate Armed Services Committee that the Military Commissions Act of 2006 (MCA) [text, PDF] should be repealed rather than reformed. Last month, that committee approved [JURIST report] a version of the National Defense Authorization Act for Fiscal Year 2010 [S 1033 materials] that would reform the use of classified, coerced, and hearsay evidence and allow defendants greater access to exculpatory evidence. Committee Chairman Carl Levin (D-MI) [official website] said that the changes were necessary for the military commissions to be considered "regularly constituted courts" within the meaning of the 2006 Supreme Court [official website] decision in Hamdan v. Rumsfeld [opinion, PDF; JURIST report]. In May, US President Barack Obama [official website] announced [JURIST report] that he would use the controversial military commissions system to try some Guantanamo Bay [JURIST news archive] detainees. The move drew criticism [JURIST report] from human rights groups, which called the plan "fatally flawed," continuing a long line of criticism of the commissions [JURIST report] for admitting some evidence that is barred from federal court, including hearsay or coerced confessions. In January, Obama issued an executive order [text; JURIST report] directing the military prison be closed "as soon as practicable and no later than one year from the date of this order."

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