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Skriven 2006-09-06 23:31:20 av Whitehouse Press (1:3634/12.0)
Ärende: Press Release (0609065) for Wed, 2006 Sep 6
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Myth/Fact: The Administration's Legislation to Create Military Commissions
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For Immediate Release
September 6, 2006

Myth/Fact: The Administration's Legislation to Create Military Commissions


ÿÿÿÿÿ President Discusses Creation of Military Commissions to Try Suspected
Terrorists ÿÿÿÿÿ In Focus: National Security

MYTH: The Administration's Bill Would Permit Trials By Military Commission
That Deprive The Accused Of Due Process.
  þ FACT: Military Commissions Established Under The Administration's Plan
    Would Provide Fair Trials Affording Unlawful Enemy Combatants
    Substantial Due Process, Including:
      þ The right to be tried before an impartial military judge and
        impartial commission;
      þ The right to be presumed innocent until proven guilty beyond a
        reasonable doubt;
      þ The right to counsel, including a JAG defense counsel and retained
        civilian counsel;
      þ The right to obtain witnesses and evidence, to cross-examine
        witnesses, and to appropriate discovery;
      þ The right against self-incrimination and the right against double
        jeopardy; and
      þ The right to at least two appeals from any conviction, including to
        a Federal Article III appellate court.

MYTH: The Administration Supports >Secret Trials_ In Absentia.
  þ FACT:The Administration Is Not Proposing That Detainees Be Tried In
    Absentia. Particularly during an ongoing conflict, sharing sensitive
    intelligence sources and methods and other classified information with
    terrorist detainees could be highly dangerous to U.S. national
    security. We are working with Congress to provide for fair trials while
    protecting such information.
  þ FACT: The Administration Believes The Commissions Must Provide For The
    Possibility Of Using Classified Evidence Outside The Presence Of The
    Accused In Extraordinary Circumstances.
  þ Sharing Sensitive Intelligence With Captured Terrorists Could Pose A
    Serious Risk To U.S. National Security. In extraordinary circumstances,
    where the judge finds it is warranted and fair, military commissions
    will permit introduction of classified evidence outside the presence of
    the accused subject to strict conditions.
  þ No >Secret Trials_ Will Be Held. Rather, the new bill provides that
    before any classified evidence is introduced outside the accused's
    presence, the head of the executive department that has classified the
    evidence must certify that sharing the evidence would harm national
    security and that the evidence has been declassified to the maximum
    extent possible. The military judge would also have to make specific
    findings that the exclusion is warranted to protect classified
    information; that the admission of an unclassified summary or redacted
    version would not be an adequate substitute; that the exclusion is no
    broader than necessary; and that it would not violate the accused's
    right to a full and fair trial.
  þ The Accused's Defense Counsel Will Remain Present And Able To Represent
    The Accused In All Proceedings, And Whenever Possible, The Accused Will
    Be Provided With Unclassified Summaries And A Redacted Transcript Of
    The Proceedings.

MYTH: The Administration Supports The Use Of Evidence Obtained Through
Torture Or Coercion.
  þ FACT: Evidence Determined To Have Been Obtained Through Torture Is
    Simply Inadmissible For Military Commissions. The United States follows
    this policy throughout the world. It is consistent with our treaty
    obligations and is reflected in the military commissions rules adopted
    in 2005.
  þ FACT: Last Year, Congress Adopted The McCain Amendment, Which Prohibits
    >Cruel, Inhuman, Or Degrading Treatment Or Punishment._ This is defined
    by reference to our Constitutional standards, for all detainees held by
    the United States, regardless of nationality or geographic location.
    Congress passed the McCain Amendment as part of the Detainee Treatment
    Act (DTA) after a significant public debate on the standard that should
    govern the treatment of captured al Qaeda terrorists.
  þ FACT: President Bush Is Committed To Enforcing The McCain Amendment.
    THE PRESIDENT: >No American will be allowed to torture another human
    being anywhere in the world. And I signed the appropriations bill with
    the McCain Amendment attached on because that's the way it is. _ [M]ake
    no mistake about it, the McCain Amendment is an amendment we strongly
    support and will make sure it's fully effective._ (President Bush,
    Press Conference, Washington, DC, 1/26/06)
  þ FACT:AllegedlyCoerced Testimony Will Be Subject to Review By The
    Military Judge. The military judge must evaluate allegedly coerced
    testimony to determine whether it is reliable and probative before
    deciding to admit it.
  þ FACT: This Proposed Rule Parallels The Rule Congress Adopted On
    Coercion In The Detainee Treatment Act (DTA), Which Embraces The
    Reliable And Probative Standard For Combatant Status Review Tribunals.
    The DTA mandates that the procedures submitted to Congress for
    Combatant Status Review Tribunals (CSRTs) shall, to the extent
    practicable, assess: (A) whether any statement derived from or relating
    to a detainee was obtained as a result of coercion; and (B) the
    probative value (if any) of any such statement. It is not an
    exclusionary rule.

MYTH: The Administration's Support For The Use Of Hearsay Evidence Will
Deny The Accused A Fair Trial.
  þ FACT:The Commissions Permit The Introduction Of All Probative And
    Reliable Evidence, Including Hearsay Evidence. Military commissions
    must try crimes based on evidence collected anywhere from the
    battlefields in the War on Terror to foreign terrorist safe houses. It
    is imperative that reliable hearsay evidence be admissible because many
    witnesses are likely to be foreign nationals who are not amenable to
    process, and other witnesses _ for both the prosecution and the defense
    _ may be unavailable because of military necessity, incarceration,
    injury, or death. Like any evidence, hearsay will not be admitted if
    its probative value is substantially outweighed by the danger of unfair
    prejudice.
  þ FACT: Critics Are Ignoring The Reality That International War Crimes
    Tribunals Permit The Introduction Of Hearsay Statements. For example,
    recognizing the difficulties in gathering evidence pertaining to events
    that occurred in war zones throughout the world, the International War
    Crimes Tribunal for the Former Yugoslavia allows witnesses to testify
    to statements made by other witnesses.

MYTH: Americans Will Be Tried By The Military Commissions.
  þ FACT:Americans Cannot Be Tried By The Military Commissions The
    Administration Has Proposed. Americans accused of war crimes and
    terrorism-related offenses will continue to be tried through our
    Article III courts or courts-martial.

MYTH: Civilians At The Pentagon Ignored Military Lawyers.
  þ FACT:The Administration's Proposal Is The Product Of Extensive
    Interagency Deliberations And Numerous Consultations With Members Of
    Congress And Military Lawyers In All Branches Of The Armed Services.
    Like a number of lawyers in the Defense Department and other concerned
    agencies, the JAGs have provided multiple rounds of comments on all
    aspects of the proposed legislative language, and they have been active
    participants in the Administration's deliberations and discussions.
    Many of their comments and recommendations are reflected in provisions
    of the Bill.
  þ Military JAG Lawyers Note They Have Been >Consulted Fairly
    Extensively._ SEN. GRAHAM: >To the judge advocates, have you been
    consulted fairly extensively about military commissions and Common
    Article 3 by the administration?_ GEN.: >Yes, sir, we have._ GEN.:
    >Particularly of late, sir._ GEN.: >Yes, sir._ (Committee On The
    Judiciary, U.S. Senate, Hearing, 8/2/06)

MYTH: We Know Common Article 3 Is Clear Because The Military Trains To
Common Article 3.
  þ FACT:The Military Trains To The Geneva Convention Standards For Lawful
    Prisoners Of War, But The Military Does Not Separately Train To Common
    Article 3.
  þ Military JAG Lawyers Concur That U.S. Troops Are Trained >To Follow The
    Geneva Convention Standards On Prisoner Of War Treatment._SEN. GRAHAM
    TO THE JAGs: >Now, you're training our troops to follow the Geneva
    Convention standards on prisoner of war treatment for every enemy
    combatant that we may come in contact with. Is that correct? An
    affirmative response. And this is important, Mr. Chairman. From the
    boots on the ground, we don't worry about the differences. We train as
    if they were members of a uniformed service representing a sovereign
    nation. And don't ever change that, because we don't want to confuse
    the troops._ (Committee On The Armed Services, U.S. Senate, Hearing,
    7/13/06)

MYTH: The Administration Is Seeking To Narrow The War Crimes Act To Protect
Abusers.
  þ FACT:The Administration Is Seeking To Provide United States Personnel
    With Clarity and Certainty As To What Constitutes A Criminal Offense
    Under The War Crimes Act. The War Crimes Act provides that any
    violation of Common Article 3 is a felony, but it does not specify what
    conduct constitutes a violation.AlthoughCommon Article 3 prohibits some
    actions that are universally condemned, such as >murder_ and >torture,_
    it also prohibits >outrages upon personal dignity_ and >humiliating and
    degrading treatment,_ phrases that are vague and do not provide
    adequate guidance to our personnel.
  þ The Bill Defines The Clear Offenses That Violate Common Article 3. The
    bill enumerates nine offenses that constitute clear violations of
    Common Article 3, including murder, torture, and cruel or inhuman
    treatment. These prohibitions include clear and serious outrages upon
    human dignity, such as rape, sexual assault, and conducting Nazi-like
    human experiments.
  þ FACT:PriorTo The Supreme Court's Decision In Hamdan, The United States
    Had Never Applied Common Article 3 To A Conflict With International
    Terrorists. Now that the Supreme Court has ruled, the Administration
    believes that we owe it to those called upon to handle detainees in the
    War on Terror to ensure that the terms of the War Crimes Act are clear
    and certain.
  þ FACT:The Administration's Bill Would Turn The War Crimes Act Into A
    Usable Prosecutorial Tool By Providing Individuals With Clear Notice As
    To The Prohibitions Under The Bill. The United States has never
    prosecuted anyone for violation of the War Crimes Act. If violations of
    the War Crimes Act are to be prosecuted, fairness requires that there
    be clarity and certainty as to what constitutes a criminal offense
    under the Act.
  þ FACT: The United States Will Prohibit Conduct That Could Constitute A
    Violation Of Common Article 3 As Defined By The U.S. Constitution And
    Laws. The Bill defines our obligations under Common Article 3 by
    reference to the U.S. Constitutional standard already adopted by
    Congress in the McCain Amendment, which prohibits any United States
    personnel from engaging in cruel, inhuman, or degrading treatment.

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