DoD Releases Military Commissions Manual

By Sgt. Sara Wood, USA
American Forces Press Service

Jan. 18, 2007 – The Defense Department today presented to Congress its manual outlining rules for military commissions as they will be conducted under the Military Commissions Act of 2006. The manual includes some major departures from past military commissions proceedings, such as affording detainees the right to self representation and directing that no classified information be presented in court without the detainees' presence.

"The overriding considerations reflected in the Manual for Military Commissions are fairness and fidelity to the Military Commissions Act of 2006," Daniel J. Dell'Orto, principal deputy general counsel for DoD, said at a Pentagon news conference today. "The act and the procedures contained in this manual will ensure that alien unlawful enemy combatants who are suspected of war crimes and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people."

The Manual for Military Commissions closely follows the military's Manual for Courts-Martial, with only a few exceptions to the laws and rules of evidence, Dell'Orto said. "I would argue that the accused is not disadvantaged under these rules as compared to the rules for courts-martial," he said. "I have difficulty trying to point out major differences because I find, as I try to walk through the process, that there are not significant differences."

The Manual for Military Commissions provides:

-- Discretion and deference to independent military judges, who will serve as presiding officials and ensure fairness;

-- An independent defense function to represent defendants and protect against the appearance of influence or conflict of interest;

-- The presumption of innocence and requirement for the prosecution to prove its case beyond a reasonable doubt;

-- A jury system comparable to that used in general courts-martial;

-- Requirement that the accused be provided, in advance, evidence to be introduced against him at trial;

-- Prohibition against admitting classified evidence outside the presence of the accused;

-- A reasonable opportunity for the accused to obtain evidence and witnesses;

-- Safeguards to protect the rights of confrontation, protection from self-incrimination, and most common law evidentiary privileges;

-- An exclusionary rule allowing the judge to suppress statements obtained by torture or in violation of the Detainee Treatment Act of 2005;

-- A requirement for the prosecution to provide exculpatory evidence to an accused consistent with federal and courts-martial practice;

-- Requirement for a unanimous verdict by 12 members in cases involving the death penalty; and

-- A thorough, comprehensive and independent appellate system. An accused will have access to the Court of Military Commission Review, the Circuit Court for the District of Columbia, and the Supreme Court of the United States.

In addition, the rules provide for formal rules of evidence consistent with federal and courts-martial practice, with only those exceptions required to be consistent with the Military Commissions Act itself. Among other things, this will ensure that an accused is not convicted based on hearsay evidence unless the judge determines that the evidence is reliable and that the accused has been given a reasonable opportunity to confront the evidence.

In the case of classified evidence, the presiding judge will be able to use redacted or summarized versions of the evidence or use substitute material if he deems it necessary, Dell'Orto explained. This provision was made because the country is at war, and the disclosure of some evidence could be harmful, he said. However, all evidence admitted to the commission will be seen by the detainee, he emphasized.

The Manual for Military Commissions was developed because, under the Military Commissions Act, which President Bush signed Oct. 17, the secretary of defense was required to submit a report to Congress setting forth the procedures for military commissions. The manual was crafted by DoD's Office of Military Commissions, and was revised with input from the U.S. Department of Justice, military judge advocates general, and representatives from executive branch agencies.

"The goal of everybody who has been involved in the process of crafting the manual has been to design a system that meets our responsibilities under (Geneva Conventions) Common Article 3, and that provides a fair trial," Air Force Brig. Gen. Thomas Hemingway, special legal advisor for the Office of Military Commissions, said at the news conference. "I am satisfied that these rules provide rules and a basis on which you can conduct a fair trial."

Hemingway said he expects the military commissions will resume this year at Guantanamo Bay, Cuba. Prosecutors from the Office of Military Commissions will need time to review the new rules and develop their cases, he said, but they are committed to moving the process along quickly.

The detainees who were previously charged under military commissions will have to be re-charged under the Military Commissions Act, Hemingway said. He said he expects these 10 detainees to be among the first tried under the new commissions rules, with an expected total of about 60 to 80 cases eventually tried.

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