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Rules for terror suspect trials: Hearsay, coerced testimony OK
International Herald Tribune/AP
January 18, 2007

WASHINGTON: The Defense Department's rules for upcoming detainee trials would allow terrorism suspects to be convicted and perhaps executed using hearsay evidence and some coerced testimony.

The rules are fair, said the department, which released them Thursday in a manual for the expected trials. However, they could spark a fresh confrontation between the Bush administration and the Democratic-led Congress over treatment of terror suspects.

According to the 238-page manual, a detainee's lawyer could not reveal classified evidence in the person's defense until the government had a chance to review it. Suspects would be allowed to view summaries of classified evidence, not the material itself.

The new regulations are intended to track a law passed last fall by Congress restoring President George W. Bush's plans to have special military commissions try terror-war prisoners. Those commissions had been struck down earlier in the year by the Supreme Court.

At a Pentagon briefing, Dan Dell'Orto, deputy to the Defense Department's top counsel, said the new rules will "afford all the judicial guarantees which are recognized as indispensable by civilized people."

Rep. Ike Skelton, a Democrat and chairman of the House Armed Services Committee, said he planned to scrutinize the manual to ensure that it does not "run afoul" of the U.S. Constitution.

"I have not yet seen evidence that the process by which these rules were built or their substance addresses all the questions left open by the legislation," Skelton said.

Officials think that with the evidence they have now, they could eventually charge 60 to 80 detainees, said Brig. Gen. Thomas Hemingway, legal adviser to the Pentagon's office on commissions.

The Defense Department is currently planning trials for at least 10.

There are almost 400 people suspected of ties to al-Qaida and the Taliban being held at the military's prison in Guantanamo Bay, Cuba. About 380 others have been released since the facility was opened five years ago.

Last September, Congress — then led by Republicans — sent Bush a new law granting wide latitude in interrogating and detaining captured enemy combatants. The legislation prohibited some abuses of detainees, including mutilation and rape, but granted the president leeway to decide which interrogation techniques were permissible.

Passage of the bill, which was backed by the White House, followed more than three months of debate that included angry complaints by Democrats about the administration's interrogation policies, and a short-lived rebellion by some Republican senators.

In outlining the maximum punishment for various acts, the new manual includes the death penalty for people convicted of spying or taking part in a "conspiracy or joint enterprise" that kills someone. The maximum penalty for aiding the enemy — such as providing ammunition or money — is lifetime imprisonment.

As required by law, the manual prohibits the use of statements obtained through torture and "cruel, inhuman or degrading treatment" as prohibited by the Constitution. It allows some evidence obtained through coercive interrogation techniques if obtained before Dec. 30, 2005, and deemed reliable by a judge.

The Detainee Treatment Act, separate legislation championed in 2005 by Sen. John McCain, a Republican and former prisoner of war in Vietnam, prohibited the use of cruel, inhuman or degrading treatment of military and CIA prisoners.

Congress and the White House agreed last year that hearsay — a witness quoting someone else — can be allowed as evidence if a judge rules the testimony is reliable. According to the manual, this is necessary because witnesses — such as military personnel or foreigners — may not be available to testify.

"As a general matter, hearsay shall be admitted on the same terms as any evidence," the manual states.

The Pentagon's Dell'Orto said that since both sides of the case can admit hearsay evidence, that "levels the playing field."

The Pentagon manual is aimed at ensuring that enemy combatants — the Bush administration's term for many of the terrorism suspects captured on the battlefield — "are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized by civilized people," according to the document.

Under the rules, the accused will be allowed to know about all evidence that is provided in the trial, Dell'Orto said. They will not be allowed to see classified material, but will be given an unclassified summary or substitute, with the judge first determining whether the summary sufficiently represents the classified material.

"When you're in the middle of a war against this enemy, you need to be particularly concerned about the disclosure of that evidence," Dell'Orto said of classified materials.

The manual states that the defense must notify the judge if it expects to disclose classified information and give the government reasonable opportunity to respond. Also, the government can object to any questions of witnesses that would require the disclosure of classified information.

Associated Press Writer Pauline Jelinek contributed to this report.

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