House Bill Allows Coerced Testimony and Hearsay in Military Commissions

The National Defense Authorization Act, passed yesterday by the House of Representatives, includes a largely overlooked provision that modifies the Military Commissions Act of 2006, which allows the government to try certain terror suspects — now called “unprivileged enemy belligerents” instead of the Bush-era term, “unlawful enemy combatants” — in military proceedings rather than Article III federal courts. The purpose of using a special court is primarily to deny defendants some of the protections that federal courts provide, such as the right to exclude coerced testimony and hearsay.

As I’ve noted before, the vast majority of legal experts, including leading defense lawyers and many former prosecutors, appear to believe that suspected terrorists can be tried more successfully in regular civilian federal courts — which have prosecuted hundreds such cases since the 9/11 terror attacks, as opposed to just three convictions in eight years of military commissions. Still, the Obama administration and Congress have refused to let the commissions go. And while yesterday’s bill appears to make some improvements to their rules — such as ensuring that the military commissions actually have defense lawyers qualified to handle death-penalty cases, which they didn’t before — the commissions would still allow the admission of hearsay and coerced testimony so long as the judge thinks it’s reliable. It also allows for military trials of children.

Human rights advocates maintain that the whole process of trying people outside the normal justice system is illegitimate and counterproductive. As Human Rights Watch Terrorism and Counterterrorism Program director Joanne Mariner said yesterday: “Tinkering with the discredited military commissions system is not enough. Although the pending military commissions legislation makes important improvements on the Bush administration’s system, the commissions remain a substandard system of justice.”

Chris Anders, Senior Legislative Counsel for the ACLU, put it this way:

While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.

Part of the problem is that even if the military commissions were fair to defendants, critics say that because of their tainted history — which includes the resignation of several prosecutors in protest — they won’t be perceived as fair to the rest of the world. What’s more, defense lawyers representing the detainees will likely challenge the courts’ constitutionality, delaying the resolution of these cases for many more years to come.