The Manual for Military Commissions
The new Manual for Military Commissions published today by the Bush Administration today sets out to retroactively legalize and justify going forward some of their worst abuses of liberty over the last five years, including imprisonment without charges, imprisonment without recourse to habeas corpus, and the use of coerced testimony and hearsay. The Preamble follows, courtesy of BBC:
The Manual For Military Commissions
1. Structural provisions of the M.C.A.
The M.C.A. amends both Articles 21 and 36, Uniform Code of Military Justice
(U.C.M.J.) (10 U.S.C. §§ 821 and 836) to permit greater flexibility in constructing procedural and evidentiary rules for trials of alien unlawful enemy combatants by
military commission. Several key provisions of the M.C.A. demonstrate this
accommodation of military operational and national security considerations:
(a) While the M.C.A. is consistent with the U.C.M.J. in many respects, neither the
U.C.M.J. itself nor “[t]he judicial construction and application of that chapter” is binding
on trials by military commission (10 U.S.C. § 948b(c)).
(b) 10 U.S.C. §§ 810, 831(a), (b), & (d), and 832 do not apply to these military
commissions (10 U.S.C. § 948b(d)(1)).
(c) Other provisions of the U.C.M.J. apply only as specified in the M.C.A. (10 U.S.C.
(d) The M.C.A. provides that the Secretary of Defense, in consultation with the Attorney
General, may prescribe rules of evidence and procedure, as well as elements and modes
of proof, for offenses tried by these military commissions (10 U.S.C. § 949a(a)), and that
if the Secretary promulgates regulations, he shall submit them to the Committees on
Armed Services of the Senate and the House of Representatives (M.C.A. § 3(b)).
(e) Such rules “shall, so far as the Secretary considers practicable or consistent with
military or intelligence activities, apply the principles of law and the rules of evidence”
for trials by general court-martial, so long as the Secretary’s rules and procedures are not
contrary to or inconsistent with the M.C.A. (10 U.S.C. § 949a(a)).
(f) Implementing rules must be consistent with the M.C.A. and provide for the accused’s
(1) be present at trial, examine and respond to evidence admitted against him,
cross-examine witnesses who testify against him, obtain and present evidence, and not be
required to testify against himself at a military commission proceeding (10 U.S.C.
§§ 948r(a), 949a(b)(1)(A) & (B), and 949j(a)); and
(2) assistance by counsel or self-representation (10 U.S.C. § 949a(b)(1)(C) &
(g) Statements obtained by torture are not admissible (10 U.S.C. § 948r(b)), but
statements “in which the degree of coercion is disputed” may be admitted if reliable,
probative, and the admission would best serve the interests of justice (10 U.S.C.
§ 948r(c)). In addition, for such statements obtained after December 30, 2005, the
methods used to obtain those statements must comply with the Detainee Treatment Act of
2005, enacted on that date (10 U.S.C. § 948r(d)(3)).
(h) In addition, rules may provide for:
(1) admission of evidence if determined to have “probative value to a reasonable
person” (10 U.S.C. § 949a(b)(2)(A));
(2) admission of evidence notwithstanding the absence of a search warrant or
other authorization (10 U.S.C. § 949a(b)(2)(B));
(3) admission of an accused’s allegedly coerced statements if they comport with
§ 948r (10 U.S.C. § 949a(b)(2)(C));
(4) authentication of evidence similar to Military Rule of Evidence (Mil. R. Evid.)
901 (10 U.S.C. § 949a(b)(2)(D));
(5) admission of hearsay evidence not meeting an exclusion or exception under
the Mil. R. Evid. if the proponent gives notice and the opposing party does not
demonstrate that the evidence lacks probative value or reliability (10 U.S.C.
§ 949a(b)(2)(E)); and
(6) exclusion of any evidence failing to meet the requirements of Mil. R. Evid.
403 (10 U.S.C. § 949a(b)(2)(F)).
2. Determinations of practicability and consistency with military and intelligence
The rules of evidence and procedure promulgated herein reflect the Secretary’s
determinations of practicability and consistency with military and intelligence activities.
Just as importantly, they provide procedural and evidentiary rules that not only comport
with the M.C.A. and ensure protection of classified information, but extend to the
accused all the “necessary judicial guarantees” as required by Common Article 3. In this
regard, these rules represent a delicate balance similar in concept, but different in detail
from those provided in the Manual for Courts-Martial.
full text at BBC: http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/18_01_07_manual.pdf
Evidence gained under torture is not admissible BUT statements “in which the degree of coercion is disputed may be admitted if reliable, probative, and the admission would best serve the interests of justice.”
The Uniform Code of Military Justice, the Geneva Conventions, Hague Conventions, and for that matter, the US Constitution, are pretty much out the window here. This is another act of extreme cynicism and just plain evil by this demented US administration. Please call or fax your Congressmen and Senators today and tell them to repeal the Military Commissions Act.
Copyright © 2007 Henry Edward Hardy
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