ACLU Requests Justice Department Memo Regarding Constitutional Rights In Guantánamo Military Commissions

July 15, 2009 12:00 am

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Memo Reportedly Addresses Legal Rights Of Detainees And Admissibility Of Coerced Evidence

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NEW YORK – In a Freedom of Information Act (FOIA) request filed today, the American Civil Liberties Union demanded disclosure of a May 2009 legal memo from the Justice Department Office of Legal Counsel (OLC) reportedly addressing the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings in the U.S. The memo reportedly also addresses the admissibility of statements obtained through coercion in those proceedings.

“The Obama administration’s continued support of the failed military commission system is at the center of much public attention and controversy,” said Jonathan Hafetz, staff attorney with the ACLU National Security Project. “The release of the OLC memo on detainee rights would help to clarify this administration’s position on military commissions and deepen the public’s understanding of this important issue.”

David Barron, Acting Assistant Attorney General of the OLC, sent the memo to a Justice Department task force on May 4, 2009. 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.

“Over the next few weeks, Congress will vote on whether and how to redefine the military commissions, but will be doing so without having all of the facts,” said Christopher Anders, Senior Legislative Counsel for the ACLU Washington Legislative Office. “In fact, the Senate is now considering a defense bill that would allow forced confessions to be used at Guantánamo military commissions, even though the undisclosed OLC opinion reportedly says that using coerced evidence may be unconstitutional. The Obama administration should not be hiding from Congress – or the American public – an opinion that directly relates to whether a bill now before the Senate is unconstitutional.”

The ACLU’s FOIA request is available online at:

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