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In a Freedom of Information Act (FOIA)
request filed today, the American Civil Liberties Union demanded
disclosure of a May 2009 legal memo from the Justice Department
Office of Legal Counsel (OLC) reportedly addressing the
constitutional rights that Guantánamo detainees could legally
claim during military commission proceedings in the U.S. The memo
reportedly also addresses the admissibility of statements obtained
through coercion in those proceedings.
"The Obama administration's
continued support of the failed military commission system is at the
center of much public attention and controversy," said Jonathan
Hafetz, staff attorney with the ACLU National Security Project. "The
release of the OLC memo on detainee rights would help to clarify this
administration's position on military commissions and deepen the
public's understanding of this important issue."
David Barron, Acting Assistant Attorney
General of the OLC, sent the memo to a Justice Department task force
on May 4, 2009. The existence of the memo was made public in a June
29 Wall Street Journal article, which asserted that the memo's
conclusions "could alter significantly the way the commissions
operate." The article also discussed the memo's position that
federal courts would find coerced evidence inadmissible under the
Constitution in military commission trials.
The constitutional rights of detainees in military commission trials have been a point of contention between the Justice Department and the Defense Department. In a Senate Armed Services Committee hearing on Capitol Hill about the Guantánamo military commissions last week, Justice Department official David Kris testified that the Constitution's Due Process Clause would indeed apply to military commission trials. Defense Department officials, however, have long sought to deny Guantánamo detainees due process rights in order to facilitate convictions through coerced evidence. The OLC memo is legally binding.
The Senate is currently debating a
draft of the defense authorization bill that includes language to
revise the military commissions and that would allow the admission of
some coerced evidence. The Justice Department, however, has testified
that the position of the administration is that the standard for
admission of evidence must be "voluntariness," and that
coerced evidence should not be admissible before the military
commissions. The OLC memo has not been made available to the Senators
who are debating changes to the military commissions system.
"Over the next few weeks, Congress will vote on whether and how to redefine the military commissions, but will be doing so without having all of the facts," said Christopher Anders, Senior Legislative Counsel for the ACLU Washington Legislative Office. "In fact, the Senate is now considering a defense bill that would allow forced confessions to be used at Guantánamo military commissions, even though the undisclosed OLC opinion reportedly says that using coerced evidence may be unconstitutional. The Obama administration should not be hiding from Congress - or the American public - an opinion that directly relates to whether a bill now before the Senate is unconstitutional."
