The Obama Administration's principles for a new system of military commissions take several steps towards the model established by the military's court-martials, but experts point to at least one major difference: Under the Uniformed Code of Military Justice, hearsay is, as a general rule, not admissible. Under the 2006 Military Commissions Act, the burden of showing that hearsay was unreliable was placed on the defendant. Obama simply shifts that burden to the government, which must now convince the judges or juries that hearsay is reliable before they can use it. Scott Silliman, a former senior Air Force judge advocate who now teaches at Duke, reminded me that it's not unusual for extraordinary tribunals to admit hearsay. However, he said, whereas a panel of jurists have the expertise and experience to consider whether the hearsay is reliable, a panel of lay military officers might not be able to make that distinction. Still, he says, Obama's approach "is better than the old rule."
Like courtmartials, the new commissions won't admit any evidence gathered from a suspect under duress. Indeed, the words that Obama uses to describe this restriction are identical to those used by the UCMJ.
Why might the government want to preserve the hearsay evidence? It's obvious, in a way: there will be statements made by detainees about their identity and intentions that, due to the circumstances by which they were obtained, would never be introduced in a federal court. But if the government were to legally confirm that information, using, say, intercepts or other testimony, allowing limited hearsay in the military commissions might give them the opportunity to introduce the statements as confirmed by a second a source. To critics, this will smack of an administration wanting it both ways -- a way to get rid of the taint of torture but keep some of the evidence that was originally derived from it.
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Marc Ambinder is a contributing editor at The Atlantic. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.