Detainees in the US detention camp in Cuba's Guantanamo Bay could be put put in prison based on hearsay and coerced evidence under new rules outlined by the United States.
Brig Gen Thomas Hemingway
The Pentagon last night gave its broad discretion to judges to decide what evidence may be presented against suspected al-Qaeda and Taliban members facing trial in the new military commissions court system.
In its Manual for Military Commissions, the US Defense Department laid out rules and procedures required to implement the law on the commissions enacted last year.
Completion of the manual is a step toward the trials, which are expected to start this year. It did not set standards for prosecutors to meet in presenting hearsay and classified evidence but instead gave authority to judges to determine what evidence is appropriate.
Protesters dressed as Guantanamo prisoners
"The goal of everybody who has been involved in this process of crafting the manual has been to design a system that meets our responsibilities under Common Article 3 (of the Geneva Conventions) and that provide a fair trial," said Brig Gen Thomas Hemingway.
"I am satisfied that these rules provide rules and a basis on which you can conduct a fair trial." Brig Gen Hemingway is the Pentagon's legal adviser on the tribunals.
Under the rules, defendants get access to all evidence presented against them, including hearsay and summaries or redacted accounts of classified evidence. But judges are given wide discretion to decide what hearsay and classified evidence may be allowed.
Rather than setting minimum standards for the evidence, the manual requires judges to review each piece of evidence on a case-by-case basis.
The rules also specify that no statements obtained through torture will be allowed. That complies with a 2005 US law outlawing "cruel, inhuman, or degrading treatment or punishment."
But judges will decide case by case whether coerced evidence obtained before that law may be used. "If it was obtained prior to that time, the judge has to make an independent finding that it is nevertheless reliable evidence," Brig Gen Hemingway said.
Military prosecutors are expected to bring cases against 60 to 80 of the 395 detainees being held at Guantanamo Bay, according to US defence officials.
The United States has faced international criticism over its continued detention of Guantanamo detainees, many held for more than four years without charges.
Many have called for the detainees to be charged with crimes or released. US officials say the detainees are a threat to the United States and could return to the battlefields of Afghanistan and Iraq if released.#
Democrats said they were concerned that the manual — based on a law passed last year in the Republican-run Congress — tramples on basic legal rights that should be afforded to military prisoners.
This, they say, puts US troops at risk of mistreatment if ever captured.
Senator Christopher Dodd said he is working alongside fellow Senate Democrats Patrick Leahy and Russ Feingold on a bill addressing flaws in the manual "that are impediments to the effective and credible prosecution of suspected terrorists."
But the Bush administration and Republican members say the tough standards are needed to ensure dangerous terrorists are convicted. "While ensuring the fair and full prosecution of terrorists, the military commissions manual preserves the ability of our warfighters to operate effectively on the battlefield," said Republican Congressman Duncan Hunter, the top Republican on the House Armed Services Committee.
Under the law, the president can convene military commissions to prosecute terror suspects so long as he follows certain guidelines, such as granting defendants legal counsel and access to evidence used against them.
It also for the first time provided specific definitions of abusive treatment of prisoners, prohibiting some of the worst abuses like mutilation and rape but granting the president leeway to decide which specific interrogation techniques are allowed.