President Seeks to Reform, Revive Military Commissions

By Fred W. Baker III
American Forces Press Service

May 15, 2009 - President Barack Obama today moved a step closer toward reforming and reviving the military commissions that have been stalled since the change in administrations. The Defense Department is sending to the Congress a handful of changes that will afford more protections to defendants at the commissions.

"Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered," Obama said in a statement released today.

Chief among the changes is that statements obtained from detainees using cruel, inhuman or degrading interrogation methods will no longer be admitted as evidence at trial.

Also, there will be limits on the use of hearsay. The new rule shifts the burden of proving reliability of the hearsay to the party who offers it. The burden will no longer be on the party who objects to the hearsay to disprove it.

The accused will have greater latitude in selecting their counsel, and there will be basic protections for those who refuse to testify. Finally, military commission judges may establish the jurisdiction of their own courts.

"These reforms will begin to restore the commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law," Obama said in the statement.

"In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice."

The rule changes do not require a change in law, but the law does require that the Defense Department give Congress 60 days notice before the rules can be implemented.

The department will ask for a 90-day continuance for pending military commission cases while the rules are reviewed by Congress.