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Hearsay, coerced testimony OK for detainee trials

WASHINGTON—Pressing ahead with plans to try some suspected terrorists, the Pentagon on Thursday sent Congress a manual for a war crimes court that would permit hearsay evidence, coerced testimony and executions of terrorists by order of the president.

The 238-page manual grants a suspected terrorist held at the U.S. Navy base at Guantanamo Bay, Cuba, the right to defend himself, but he'd be permitted to see only summaries of classified information. The manual prohibits defense lawyers from revealing potentially favorable classified evidence—until the government has a chance to review it.

At a Pentagon news conference, the Defense Department's deputy general counsel, Daniel Dell'Orto, defended the use of hearsay evidence as the result of "the unique conditions under which evidence will be obtained on the battlefield."

He said that both defense and military lawyers would be allowed to use hearsay evidence, thus leveling the playing field at a military war crimes court.

The Pentagon manual could spark a fresh confrontation between the Bush administration and the new Democratic-controlled Congress.

As guidelines for the first U.S. war-crimes tribunal since World War II, the manual is intended to implement a law passed last fall by Congress, then controlled by Republicans. The U.S. Supreme Court earlier ruled illegal a previous Bush administration plan for military commissions for war-on-terror captives.

Sen. Christopher Dodd, D-Conn., a member of the Senate Foreign Relations Committee, called the new guidelines "deeply flawed," and Amnesty International issued a swift condemnation.

The Pentagon's chief defense counsel, Marine Col. Dwight Sullivan, said late Thursday that the new rules "appeared carefully crafted to ensure that an accused can be convicted—and possibly executed—based on nothing but a coerced confession."

The Pentagon manual gives military judges and officers the role of judge and jury for enemy combatants charged as war criminals. It's meant to ensure prosecution "before regularly constituted courts affording all the judicial guarantees which are recognized by civilized people," according to the document.

Prohibitions against the use of evidence obtained by torture and "cruel, inhuman or degrading treatment" are now "ingrained in statute," said Brig. Gen. Thomas Hemingway, the Pentagon legal adviser to the process.

However, the law allows statements obtained through coercive interrogation techniques if they were obtained before Dec. 30, 2005, and are deemed reliable by a judge.

The U.S. military is holding about 395 men and teens suspected of links to al-Qaida and the Taliban at Guantanamo. It's said it might charge 60 to 80 of them as war criminals.

Among those expected to be tried are Khalid Shaikh Mohammed, whom the White House declared a mastermind of the Sept. 11 attacks after the CIA held and interrogated him in secret detention.

The manual provides a death penalty for those convicted of "conspiracy or joint enterprise."

In those cases it gives the defense secretary, former CIA director Robert Gates, the power to decide how to carry out capital punishment, and says executions will be carried out by order of the president.

However, the manual says the military won't execute a captive who lacks "the mental capacity to understand the punishment"—until he regains the capacity to understand.

Amnesty International criticized the new guidelines.

"Civilians picked up far from any battlefield still may be tried in a military system of justice," said Amnesty International USA attorney Jumana Musa. "And defendants can be convicted on evidence obtained through coercion or cruel, inhuman and degrading treatment that would be inadmissible in any other U.S. judicial forum."

The manual doesn't specify that the trials be held at Guantanamo. But the Pentagon's Hemingway said it was a likely locale.

Navy Cmdr. Jeffrey D. Gordon, a Pentagon public affairs officer, dismissed as "absurd" the notion that a captive could be executed "based solely on hearsay or coerced testimony."

"Such evidence, if even admitted into the proceedings, would be considered in context of the cases in their entirety," added Gordon, "and may represent only a fraction of the information used by the prosecution."

Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, said he'd examine the manual to ensure that it doesn't run afoul of the Constitution.

Of particular concern to Dodd are "the lack of safeguards against coerced evidence being introduced in trial, and the limitations on defense access to witnesses and evidence."


(Clark reported from Washington, Rosenberg from Miami.)


(c) 2007, McClatchy-Tribune Information Services.

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