DOD Issues Newest Set of Rules For Military Commissions

The Pentagon published the newest version of the Manual for
Military Commissions late yesterday, one day before proceedings in the
Omar Khadr case were scheduled to commence at the U.S. detention
facility at Guantanamo. Those on the ground at the base--including
judges, attorneys, and observers--have yet to receive a copy of the new
rules. For months, since the latest amendments to the Military
Commissions Act, military commission proceedings have taken place
without clear guidance, leaving many participants unable to make basic
decisions in these cases. According to Human Rights First, the new
rules and guidelines, while welcome, fall short of due process
requirements and mean the commissions will be vulnerable to years of
constitutional challenges.

"While having a set of rules to govern these proceedings beats all
the participants making it up as they go along," said Human Rights
First President and CEO Elisa Massimino, "these rules do not cure the
fundamental defects of military commissions. Allowing evidence obtained
by interrogations that violate the Geneva Conventions and trying people
for conduct that was not designated as a war crime when
committed--these are the reasons why commissions lack the legitimacy of
regular federal courts. Their continued use threatens to perpetuate
the legacy of failed trial and detention policies at Guantanamo."

Over the past seven years, military commissions have convicted only
three prisoners. During that same time, the commissions have been
reformed three times. By contrast, according to Department of Justice
figures, federal courts have tried more than four hundred terrorism
cases.

The new manual issued by the Pentagon provides some needed reforms,
such as giving defendants in capital cases the right to at least one
additional counsel who is learned in applicable law relating to death
penalty cases. Under the old rules, defendants in capital cases had no
such right.

But the manual includes troubling rules that likely will undermine
the constitutionality of future convictions. For example, the manual
continues to permit the introduction of coerced statements under
certain circumstances. In addition, unlike in courts-martial or regular
federal courts, it permits evidence from third parties obtained by
cruel, inhumane, and degrading treatment if "use of such evidence would
otherwise be consistent with the interests of justice." In addition,
the manual, consistent with the 2009 Military Commissions Act,
continues to permit defendants to be tried ex-post facto for conduct
not considered to constitute a war crime at the time it was committed,
such as material support for terrorism.

"Why would we risk relying on an untested military commissions
system for these important cases when our nation's federal civilian
courts have proven hundreds of times over that they can deal with
complex terrorism cases?" asked Massimino. "Our civilian courts have
stood the test of time since the days of Adams and Jefferson. It would
be a grave--and unnecessary--error to abandon them now."