DOD Issues Newest Set of Rules For Military Commissions

Washington, DC––  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 derived from statements 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.”