New Military Commissions Act Still Allows Coerced Testimony and Hearsay

A few more points worth noting about the new Military Commissions Act amendments passed by Congress yesterday: Just as the House bill circulating earlier did, the amendments passed would still allow some coerced testimony to be used in court if the military judge decides it’s reliable and it wasn’t obtained using “cruel, inhuman, or degrading treatment,” as prohibited by the Detainee Treatment Act of 2005.

While that sounds good, remember that the Detainee Treatment Act was interpreted by the Bush administration’s Justice Department to allow such “enhanced interrogation techniques” as sleep deprivation, food deprivation, shackling, forced standing in stress positions, and a variety of “corrective techniques” that include physical slaps and grabs – either alone or in combination. The new “protections” in the MCA amendments are therefore not all that reassuring.

The amendments also continue to allow judges to admit hearsay evidence, even though the source of the evidence is unavailable for cross-examination by defense counsel. Classified evidence can also still be used against a defendant, although he does not have the right to see it. Protections were added, however, so that the procedures used to protect classified evidence essentially mirror those used in a civilian federal court.

This post has been updated.