Congressional Conferees Approve Changes To Guantánamo Detainee Policy And Military Commissions

October 7, 2009 12:00 am

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WASHINGTON – Two different authorization bills approved today by congressional conferees would impact the detainees held by the United States at Guantánamo Bay and the military commissions system created to try them. The National Defense Authorization Act would make changes to the unconstitutional Guantánamo military commissions and the Homeland Security Appropriations Act would block the release of detainees into the United States for purposes other than prosecution.

The conference report on the National Defense Authorization Act, which will likely pass both houses of Congress and be sent to the president within the next week, revises the Military Commissions Act of 2006 to remove some its worst violations of due process, but the legislation still falls far short of the requirements imposed by the Constitution and the Geneva Conventions. In particular, the conference bill limits the use of some coerced evidence, but does not meet the voluntariness standard required by the Constitution. It also has a very broad definition of who can be tried before a military commission, and does not even prohibit military commission trials of children. Among the improvements, however, are a requirement of experienced capital defense attorneys in death penalty cases, more resources for defense counsel and greater access to witnesses and evidence for defendants.

The American Civil Liberties Union strongly believes that the Guantánamo military commissions are inherently illegitimate and should be shut down for good, not simply modified. But the modifications in the defense authorization conference bill fall short of improvements that could have been included and don’t even satisfy the standards requested by the Obama administration.

The following can be attributed to Christopher Anders, ACLU Senior Legislative Counsel:

“The military commissions are inherently flawed and should not be continued in any form. Even in attempting to improve them, Congress has missed the mark, failing once again to provide the basic due process rights guaranteed by the Constitution and international law. Although the conferees have taken significant steps in limiting coerced evidence and hearsay evidence and providing greater defense counsel resources, the legislation leaves the door open to violations of due process that would be barred from every criminal courtroom in America. Statements that were not voluntarily given by a witness could still be admitted, the procedural rules are made by the same agency that is prosecuting the defendants, those defendants who did not violate any law of war can be tried as combatants and even minors can be charged and tried before military commissions.

“The president had campaigned on a promise to ‘reject the military commissions act,’ but, instead, he could be signing into law another statute that would continue this second class system of justice. The military commissions were devised nearly eight years ago to circumvent the law and the Constitution in order to achieve easy convictions, not to provide justice, and their outcomes cannot be trusted. This third try at a military commission again falls short of true justice. Because of their tainted history, these proceedings, if carried on in any form, would continue to be stigmatized as unfair and inadequate, would be plagued by delay and controversy and would keep alive the terrible legacy of Guantánamo.”

In a separate House-Senate conference, conferees approved a DHS Appropriations bill that would allow transfer of detainees to the U.S. for purposes of prosecution only, provided the administration gives Congress a detailed plan for each detainee’s transfer.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

“Congress should not be creating new obstacles to the closure of the prison at Guantánamo Bay. The prison is an icon of injustice and Congress should be supporting rather than interfering with efforts to close it. Perhaps one positive consequence of this provision, however, is that it indicates that prisoners cannot be brought to the United States for the purpose of indefinite detention without trial. We continue to believe that a system that allows indefinite detention without charge or trial has no place in a democracy.”

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