The Honorable John Warner    
Chairman               
Committee on Armed Services      
228 Russell Senate Office Building
Washington, D.C.  20510                       

The Honorable Carl Levin
Ranking Member
Committee on Armed Services   
228 Russell Senate Office Building         
Washington, D.C.  20510

RE:     Need to Question Attorney General Alberto Gonzales and Deputy Defense Secretary Gordon England on the Pervasive Problems in the Draft White House Proposal on Detainees

Dear Chairman Warner and Senator Levin:

The American Civil Liberties Union strongly urges you to use the Armed Services Committee hearing on Wednesday to question Attorney General Alberto Gonzales and Deputy Defense Secretary Gordon England about the pervasive problems in the Administration’s internal draft bill.  Based on the draft proposal that was widely circulated last week, 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,

• take a step that is unprecedented in both American law and international courts of allowing the federal government to convict a defendant based on secret evidence, and bar him from being present at his own trial, 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 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, writing for four justices, 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 near certainty of triggering eventual invalidation by the Supreme Court, the Administration is stubbornly adhering to its proposal to exclude defendants from their own trial and to use secret evidence whenever "necessary."

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.  Moreover, based on the reports of ACLU observers at proceedings in Guantanamo to determine the combat status of detainees, it appears that most, if not all, of the detainees are being held based almost entirely on evidence that they have never seen.

The draft Administration proposal is inconsistent with 26 years of federal government experience in prosecuting terrorists based on classified information, and staying within the law.  In contrast to the carefully-crafted protections of the Classified Information Procedures Act, which was enacted in 1980 and was used during the federal prosecution of every major terrorist suspect to date, and the procedures under the Uniform Code of Military Justice (which closely tracks the Classified Information Procedures Act), the draft Administration proposal for excluding the defendant from his trial and convicting the defendant based on secret evidence does not require consideration of the impact on the defendant's ability to defend himself. 

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--and will inevitably result in the Supreme Court once again invalidating criminal procedures and sending these important cases back to square one.

The ACLU strongly urges you to use the hearing on Wednesday as an opportunity to question the top Administration witnesses on the problems with the draft White House bill. 

Sincerely,   

Caroline Fredrickson                                       
Director                 

Christopher E. Anders                                        
Legislative Counsel