ACLU Letter to the House Armed Services Committee Urging the Questioning of Judge Advocates General on the Problems in the White House Proposal on Detainees

The Honorable Duncan Hunter
Chairman
Committee on Armed Services
2120 Rayburn House Office

Building
Washington, D.C.

20515

The Honorable Ike Skelton
Ranking Member
Committee on Armed Services

2206 Rayburn House Office

Building
Washington, D.C. 20515

RE: Need to Question

Judge Advocates General on the Pervasive Problems in the Draft White House

Proposal on Detainees

Dear Chairman Hunter and Congressman Skelton:

The American Civil Liberties Union strongly urges you to use the Armed

Services Committee hearing this afternoon to question witnesses about the

pervasive problems in the Administration’s internal draft bill. As reported in the New York Times today,

a draft White House bill would:

• gut the enforceability of important Geneva Convention protections,
• allow the use of evidence obtained through federal government abuse and cruelty
  

  towards persons during interrogations,

• deny a defendant access to the evidence being used against him, and

• allow the use of the types of hearsay evidence that would be banned from every
  

  military or civilian court in America.

If enacted by Congress, the draft White House bill would

violate the Geneva Conventions because of the absence of basic due process of

law--and make it all but certain that the Supreme Court will reverse any

convictions based on these illegal procedures.

Specifically, the proposed White House bill would:

Gut the enforceability of important Geneva Conventions

protections. The draft White

House bill reportedly provides that the Geneva Conventions “are not a source of

judicially enforceable individual rights.”

The objective of this provision is to take away the ability of American

military and civilian courts to hear the claim by any person that the federal

government violated even the most basic protections of the Geneva

Conventions. Since the Geneva

Conventions were ratified by the Senate and given effect in U.S. law by

Congress, the draft White House bill would destroy the system of checks and

balances for enforcement of the Geneva Conventions protections. If Congress shuts down the courts on

enforcement of Geneva Conventions protections, then there is no check against

the federal government violating this important federal law.

Ironically, the Court of Appeals

decision that the Supreme Court reversed in Hamdan v. Rumsfeld used the

exact language of the White House proposal in holding that the Geneva

Conventions were not a source of judicially enforceable individual rights. However, the Supreme Court specifically

rejected and reversed that holding of the Court of Appeals. Thus, the draft White House bill

asks Congress to reverse, at least in part, the most important decision of the

Supreme Court’s most recent term.

Explicitly authorize the federal government to use

evidence obtained by abuse, cruel, inhuman, or degrading treatment. Congress has never authorized federal

prosecutors to use evidence obtained by torture or abuse in any criminal

trial. Under this proposal,

even evidence obtained through torture committed by countries such as Syria or

Saudi Arabia could be considered by the federal government as the basis of a

conviction in an American trial. An

overwhelming bipartisan majority of Congress passed the McCain amendment that

reinforced the longstanding ban on the federal government engaging in torture or

cruel, inhuman, or degrading treatment.

However, this provision in the draft White House proposal would provide

an incentive to violate the McCain amendment and a reward for past violations of

laws against torturing or abusing detainees. The federal government would have a new

incentive to continue its practice of kidnapping persons and sending them to

countries that engage in torture, as a way of obtaining additional

evidence. And it would allow

convictions based on statements made by persons who may have been willing to

make up anything to have the torture and abuse stop.

Exclude defendants from their own trial, and allow

convictions based on secret evidence. Justice Stevens has warned the

Administration that it has failed to establish how there could be

"circumstances in which it would be 'fair' to convict the accused based on

evidence he has not seen or heard" -- a possibility that Justice Kennedy agreed

was "troubling." Despite this, the

Administration is stubbornly adhering to its proposal to exclude defendants from

their own trial and to use secret evidence whenever "necessary," at most

requiring a declassified summary be provided to the defendant. Based on this Administration's penchant

for secrecy and the ACLU’s experience in reviewing more than 100,000 pages of

torture documents--which are typically heavily redacted--produced pursuant to

our FOIA request, this procedure would likely result in convictions

of detainees who have been excluded from their own trial and

seen little, if any, of the evidence against them. And, in contrast to the

carefully-crafted protections of the Classified Information Procedures Act and

the procedures under the Uniform Code of Military Justice (which closely tracks

the Classified Information Procedures Act), the Administration's standard for

allowing exclusion and secret evidence does not appear to require consideration

of the impact on the defendant's ability to prepare his defense.

Allow the use of hearsay evidence that would be

banned from every military or civilian court in America. One purpose of the congressional

hearings should be to determine whether some narrow additional exceptions to the

hearsay rule are necessary to accommodate the reality of battlefield capture and

detention. Unfortunately, rather

than discuss reasoned exceptions to our centuries-old prohibition on the use of

hearsay, the Administration is opting for a wholesale rollback of that

protection. The procedural

modifications to the use of hearsay are too important to be left to the

discretion of a single judge, as the Administration proposes -- particularly one

who may not have sufficient independence. The use of hearsay could compound

the problem of secret evidence by allowing the introduction of anonymous

allegations relayed secondhand--or even thirdhand--by hearsay witnesses. Similarly, broad use of hearsay

testimony may gut protections against the use of information gained through

coercion and torture; secondhand witnesses will not be able to guarantee (and

may not even know) whether information was originally obtained through torture

and coercion.

The result of the draft White House proposal would be a violation of

Common Article 3 of the Geneva Conventions and a reversal of any convictions

obtained under the procedures of the White House proposal. There is no reason for Congress to

ratify broken and illegal procedures that abandon basic American due process and

which will only delay convictions of any persons who committed crimes against

the United States.

The ACLU strongly urges you to use the hearing this afternoon as an

opportunity to question the Judge Advocates General of the four services on the

problems with the draft White House bill.

Sincerely,

Caroline Fredrickson
Director

Christopher E. Anders

Legislative Counsel