TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

• US federal court has strict rules for the admission of evidence; hearsayand evidence gathered unconstitutionally are strictly prohibited.Military commission rules drafted by the Bush administration, however,would have allowed any evidence to be admitted provided “theevidence would have probative value to a reasonable person.” 355• The Bush Administration also made military commissions unreviewableby most US courts. Moreover, if national security required,prosecutors had a right not to inform defendants of evidence againstthem, and defendants could even be excluded from attending theirown trials.The White House claimed these restrictions on the rights of defendants wereintended to protect national security and overcome evidentiary problemspresented by trying defendants captured internationally where evidence mightbe hard to preserve. However, domestic and international critics allegedthat the commissions deprived defendants of processes fundamental to fairtrials. Critics further alleged that under the military commissions’ then rules,evidence obtained through torture could be used against defendants at trial.Despite critics’ concerns, the first of the Bush administration military commissionsconvened for trial in 2004.The Detainee Treatment Act (2005)Congress further diminished protections for defendants tried by militarycommissions with its passage of the Detainee Treatment Act of 2005. Themajority of the Act related to the interrogation of prisoners, but it includedthe requirement that only the Court of Appeals for the District of Columbiacould review military commission decisions and hear habeas corpus petitionsof military prisoners challenging their detentions as unlawful.In 2006, the Supreme Court held in Hamdan v. Rumsfeld that certain militarycommission procedures violated international and domestic law. 356 Specifically,the Court ruled that prohibiting a defendant from attending his own trial,admitting testimony obtained through coercion and denying the defendantaccess to classified information violated both the Geneva Conventions and theBelfer Center for Science and International Affairs | Harvard Kennedy School129

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