[Ppnews] Pentagon Sets Rules for Detainee Trials

Thu Jan 18 19:40:12 EST 2007

Pentagon Sets Rules for Detainee Trials
By ANNE FLAHERTY 01.18.07, 6:55 PM ET

http://www.forbes.com/feeds/ap/2007/01/18/ap3341945.html

The Pentagon set rules Thursday for detainee trials that could allow 
terror suspects to be convicted and perhaps executed using hearsay 
testimony and coerced statements, setting up a new clash between 
President Bush and Congress.

The rules are fair, said the Pentagon, which released them in a 
manual for the expected trials. Democrats controlling Congress said 
they would hold hearings and revive legislation on the plan, and 
human rights organizations complained that the regulations would 
allow evidence that would not be tolerated in civilian or military courtrooms.

According to the 238-page manual, a detainee's lawyer could not 
reveal classified evidence in the person's defense until the 
government had a chance to review it. Suspects would be allowed to 
view summaries of classified evidence, not the material itself.

The new regulations lack some protections used in civilian and 
military courtrooms, such as against coerced or hearsay evidence. 
They are intended to track a law passed last fall by Congress 
restoring Bush's plans to have special military commissions try 
terror-war prisoners. Those commissions had been struck down earlier 
in the year by the Supreme Court.

At a Pentagon briefing, Dan Dell'Orto, deputy to the Defense 
Department's top counsel, said the new rules will "afford all the 
judicial guarantees which are recognized as indispensable by civilized people."

In an interview, Brig. Gen. Thomas Hemingway, legal adviser to the 
Pentagon's office on commissions, said he doubted that most cases 
would rely solely on coercive or hearsay evidence.

"These case are pretty complex and it's not going to sink or swim, I 
don't believe, on a single statement," he said.

Rep. Ike Skelton, D-Mo., chairman of the House Armed Services 
Committee, said he planned to scrutinize the manual to ensure that it 
does not "run afoul" of the Constitution.

"No civilized nation permits convictions to rest on coerced evidence, 
and reliance on such evidence has never been acceptable in military 
or civilian courts in this country," said Elisa Massimino, Washington 
director of Human Rights First.

Officials think that with the evidence they have now, they could 
eventually charge 60 to 80 detainees, said Hemingway said. The 
Defense Department is currently planning trials for at least 10.

There are almost 400 people suspected of ties to al-Qaida and the 
Taliban being held at the military's prison in Guantanamo Bay, Cuba. 
About 380 others have been released since the facility was opened 
five years ago.

Last September, Congress - then led by Republicans - sent Bush a new 
law granting wide latitude in interrogating and detaining captured 
enemy combatants. The legislation prohibited some abuses of 
detainees, including mutilation and rape, but granted the president 
leeway to decide which interrogation techniques were permissible.

In outlining the maximum punishment for various acts, the new manual 
includes the death penalty for people convicted of spying or taking 
part in a "conspiracy or joint enterprise" that kills someone. The 
maximum penalty for aiding the enemy - such as providing ammunition 
or money - is lifetime imprisonment.

As required by law, the manual prohibits the use of statements 
obtained through torture and "cruel, inhuman or degrading treatment" 
as prohibited by the Constitution. But it allows some evidence 
obtained through coercive interrogation techniques if obtained before 
Dec. 30, 2005, and deemed reliable by a judge.

The Detainee Treatment Act, separate legislation championed in 2005 
by Sen. John McCain, R-Ariz., prohibited the use of cruel, inhuman or 
degrading treatment of military and CIA prisoners.

Congress and the White House agreed last year that hearsay - a 
witness quoting someone else - can be allowed as evidence if a judge 
rules the testimony is reliable. According to the manual, this is 
necessary because witnesses - such as military personnel or 
foreigners - may not be available to testify.

The Pentagon's Dell'Orto said that since both sides of the case can 
admit hearsay evidence, that "levels the playing field."

Under the rules, the accused will be allowed to know about all 
evidence that is provided in the trial, Dell'Orto said. They will not 
be allowed to see classified material, but will be given an 
unclassified summary or substitute, with the judge first determining 
whether the summary sufficiently represents the classified material.

"When you're in the middle of a war against this enemy, you need to 
be particularly concerned about the disclosure of that evidence," 
Dell'Orto said of classified materials.

Sen. Christopher Dodd, D-Conn., said he believes the Pentagon's top 
lawyers assigned to defend detainees were excluded from the 
preparation and review of the manual. Last fall, critics of Bush's 
plan for military commissions charged that the administration ignored 
the advice of uniformed legal experts.

Dodd, a presidential candidate, said he will introduce a bill 
addressing flaws in the manual "that are impediments to the effective 
and credible prosecution of suspected terrorists."

The document was hailed by Rep. Duncan Hunter of California, top 
Republican on the House Armed Services, who said, "Khalid Shaikh 
Mohammed, the alleged mastermind behind the 9/11 attacks, and his 
cohorts are a step closer to trial."

Associated Press Writers Pauline Jelinek and Lolita C. Baldor 
contributed to this report.

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