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Reformed Military Commissions Pass The House.
The Defense Authorization Act, which contains the revisions to the newly reconstituted military commissions, passed the House yesterday afternoon. As I wrote yesterday, the revisions lack the "voluntariness" clause that the administration's own Office of Legal Counsel reportedly said was necessary to make the commissions constitutional.
Between the expected Patriot Act reauthorization and Joe Lieberman's attempt to pass the White House supported legislation that would legalize the suppression of torture photos, civil liberties are taking a beating. The ACLU released a statement praising what revisions are in the bill but calling the commissions illegitimate by nature. From Chris Anders, ACLU Senior Legislative Counsel:
While this bill contains substantial improvements to the current military commissions, the system remains fatally flawed and contrary to basic principles of American justice. 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.
It's astonishing what the White House has been able to get away with in the past few days -- with the 24-7 focus on health care laying down cover fire, the Obama administration has been able to quietly get everything it wants in terms of reauthorizing powers it had previously that Obama had promised to curtail or giving itself new authority that -- at the very least -- violates the spirit of Obama's inaugural proclamation that "we reject as false the choice between our safety and ideals." Virtually the only spot of good news on the civil-liberties front in the past few days is that Congress has agreed to allow the transfer of Guantanamo Bay detainees to American soil for prosecution.
-- A. Serwer
COMMENTS (1)
Adam - It looks to me like the military commission provision does contain a voluntariness standard for statements made other than at the point of capture.
See
§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination;
admission of other statements of the accused
[...]
(c) OTHER STATEMENTS OF THE ACCUSED.—A
statement of the accused may be admitted in evidence in
a military commission under this chapter only if the military judge finds—
(1) that the totality of the circumstances renders the statement reliable and possessing sufficient
probative value; and
(2) that—
(A) the statement was made incident to
lawful conduct during military operations at the
point of capture or during closely related active
combat engagement, and the interests of justice
would best be served by admission of the statement into evidence; or
(B) the statement was voluntarily given.
(d) DETERMINATION OF VOLUNTARINESS.—In determining for purposes of subsection (c)(2)(B) whether a
statement was voluntarily given, the military judge shall
consider the totality of the circumstances, including, as
appropriate, the following:
(1) The details of the taking of the statement,
accounting for the circumstances of the conduct of
military and intelligence operations during hostilities.
(2) The characteristics of the accused, such as
military training, age, and education level.
(3) The lapse of time, change of place, or
change in identity of the questioners between the
statement sought to be admitted and any prior questioning of the accused.
Posted by: Jen | October 9, 2009 2:46 PM