Administration Task Force Spells Out Procedural Rights Of Detainees

Seven years, two elections and about half-a-dozen Supreme Court decisions after President Bush started warehousing detainees at Guantanamo Bay, Cuba, a key Obama Administration task force released a preliminary report yesterday which spells out much of how the Administration intends to prosecute these detainees.  In a clear break from the prior Administration, the report promises to apply a “presumption that, where feasible” detainees will prosecuted in criminal court, although an attachment lays out a complex test to determine when military commissions are appropriate.  Because the Administration anticipates the use of such tribunals, much of the report also lays out procedural safeguards to ensure that these military commissions reach fair and accurate results.

In addition to reiterating the Obama Administration’s support for five recently announced procedural rules–such as a ban on the use of statements obtained through “cruel, inhuman, and degrading treatment”–the meat of the report is a call for Congress to enshrine eight safeguards in the United States Code:

(1) codifying in law a prohibition on use of statements obtained through cruel, inhuman and degrading treatment; (2) further regulating the use of hearsay, to bring the rule more in line with the rules in federal court or courts-martial . . . (3) adopting a “voluntariness” standard for the admission of statements of the accused, while taking into account the challenges and realities of the battlefield; (4) incorporating classified information procedures that are more similar to those applicable in federal court . . . (5) reforming the appellate process to give reviewing courts more authority . . . (6) adopting clear rules requiring the government to disclose exculpatory evidence to the accused; (7) ensuring that the offenses charged in military commissions are law of war offenses; and (8) including a sunset provision requiring Congress to reevaluate the legislation after a term of years.”

The common thread flowing throughout these eight safeguards is the need to ensure that military commissions reach reliable results.  Hearsay evidence isn’t restricted in court proceedings because of some need to coddle criminals, but because second-hand accounts of what a witness might have said aren’t particularly reliable.  Similarly, coerced confessions are excluded from criminal trials precisely because there is no way to know where a coerced defendant is actually telling the truth.  In other words, these rules reflect the Obama Administration’s commitment to actually figuring out who the terrorists are at Guantanamo, rather than simply locking up innocent and guilty alike.

Of course, the promise of legal safeguards is one thing; actual justice for the wrongfully detained is another.  Moreover,a full report on the future of detainee prosecutions was originally supposed to be released today, but that report has been delayed for six months.  Nevertheless, the procedures laid out in yesterday’s preliminary report will go a long way towards eliminating the Kafkaesque detention and sham tribunals of the prior Administration if they are actually implemented.  Hopefully, they will allow the present Administration to finally sort the actual terrorists at Guantanamo away from the many innocents still detained there.