ACLU Demands OLC Memo Regarding Constitutional Rights in Guantánamo Military Commissions

Today, we filed a Freedom of Information Act (FOIA) request demanding the disclosure of a May 2009 legal memo from the Justice Department Office of Legal Counsel (OLC). The memo reportedly addresses the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings, as well as the admissibility of statements obtained through coercion in those proceedings.

The existence of the memo was made public in a June 29 Wall Street Journal article, which asserted that the memo’s conclusions “could alter significantly the way the commissions operate.” The article also discussed the memo’s position that federal courts would find coerced evidence inadmissible under the Constitution in military commission trials.

The constitutional rights of detainees in military commission trials have been a point of contention between the Justice Department and the Defense Department. In a Senate Armed Services Committee hearing on Capitol Hill about the Guantánamo military commissions last week, Justice Department official David Kris testified that the Constitution’s due process clause would indeed apply to military commission trials. Defense Department officials, however, have long sought to deny Guantánamo detainees due process rights in order to facilitate convictions through coerced evidence. The OLC memo is legally binding.

The Senate is currently debating a draft of the defense authorization bill that includes language to revise the military commissions and that would allow the admission of some coerced evidence. The Justice Department, however, has testified that the position of the administration is that the standard for admission of evidence must be “voluntariness,” and that coerced evidence should not be admissible before the military commissions. The OLC memo has not been made available to the Senators who are debating changes to the military commissions system.

There has been much attention and controversy surrounding the military commissions. The release of the OLC memo on detainee rights would help to clarify the Obama administration’s position on military commissions, deepen the public’s understanding of this important issue, and provide Congress with the facts necessary to vote on any legislation that would redefine the military commissions.

You can make your voice heard by sending a message to your Senator today asking them not to let the Defense Department Authorization bill become a vehicle for undermining civil liberties. The military commissions are inherently illegitimate and unconstitutional. Their continuation will only prove to further erode our system of justice.