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

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 Guantanamo
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 Guantanamo
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 Guantanamo 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 Guantanamo 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: www.aclu.org/safefree/detention/40312lgl20090715.html