House Hears Testimony On Unconstitutional Guantanamo Military Commissions

July 16, 2009 12:00 am

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WASHINGTON – The House Armed Services Committee will hear testimony today from a panel of Judge Advocates General about proposed changes to the unconstitutional Guantanamo military commissions. The hearing is entitled, “Prosecuting Law of War Violations: Reforming the Military Commissions Act of 2006.”

The Military Commissions Act of 2006 created the Guantanamo military commissions which allow coerced confessions and hearsay evidence to be used in detainee trials. The U.S. Supreme Court had ruled that the first version of the military commissions was illegal. President Obama, as a candidate, took the position that the second and current version of the military commissions, as implemented through the Military Commissions Act, should be rejected, but he is now pushing Congress to help revive these proceedings with certain changes.

“The military commissions fly in the face of the most basic principles of our democracy and justice system,” said Christopher Anders, ACLU Senior Legislative Counsel. “The military commissions were set up to circumvent both the law and the Constitution to achieve easy convictions, not to provide justice. The Justice Department has successfully prosecuted in federal criminal courts more than 200 defendants in international terrorism cases for crimes committed both before and after 9/11; the Guantanamo military commissions have convicted only three. The president and Congress should end this experimental system and use the same federal courts that convict criminals every day.”

The Senate is currently working on a defense authorization bill that could include provisions addressing changes to the military commissions. Yesterday, the ACLU filed a Freedom of Information Act (FOIA) request demanding 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. However, the OLC memo has not been made available to the Senators who are debating changes to the military commissions system.

“There is no excuse for the administration to withhold from the Senate a legal opinion that concludes that the bill on the Senate floor may be unconstitutional,” said Anders. “Without having a crucial piece of the puzzle, Congress could vote as early as next week to make unconstitutional changes to the Guantánamo military commissions, potentially allowing forced confessions to be admitted into evidence. Congress and the American people must be fully informed of the administration’s legal position. The Justice Department should not be hiding the ball from Congress or the American people.”

To read a coalition letter to the Senate regarding the military commission language in the National Defense Authorization Act, go to: /safefree/detention/40345leg20090716.html

The ACLU’s FOIA request is available online at:

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