When he struck down the military commission process at the US-run Guantánamo prison camp in June, Supreme Court Justice John Paul Stevens reached back into history to cite the kind of unfair trial that might result under the Bush administration's plan to use a sharply streamlined system of justice to prosecute suspected Al Qaeda terrorists as war criminals.
His example: the 1945 trial of Japanese Gen. Tomoyuki Yamashita by a special US military commission in the Philippines. The commission held the general responsible for war crimes committed by forces under his command, although no direct evidence was presented during the month-long trial to show that he had ever ordered, participated in, or condoned the atrocities. He was subsequently hanged.
That outcome was made possible, in part, through liberal use of hearsay evidence. The military commission was told it was free to use as evidence anything that its members felt would be of assistance to a reasonable person in proving or disproving the charge.
"Every conceivable kind of statement, rumor, report, at first, second, third, or further hand, written, printed, or oral, and one 'propaganda' film were allowed to come in" as evidence, wrote then-Supreme Court Justice Wiley Rutledge in a criticism of the proceeding.
The commission, he wrote, allowed "the admission of untrustworthy, unverified, unauthenticated evidence which could not be probed by cross- examination or other means of testing credibility, probative value or authenticity."
Justice Rutledge saw the Yamashita trial as a kangaroo court with a few cosmetic legal embellishments but no real fair-trial protections. "The purpose of battle is to kill. But it does not follow that this would justify killing by trial after capture or surrender, without compliance with laws or treaties made to apply in such cases," he wrote. Today, legal scholars agree with Rutledge's assessment and see the Yamashita trial as egregiously unfair.
Now, in the wake of the Supreme Court's ruling in the Guantánamo case, the Bush administration is working to redraft its rules for military commissions. At issue is how best to fashion a military tribunal system that provides an acceptable balance safeguarding national security and offering fair-trial protections to terrorist suspects.
Administration officials are seeking congressional authorization to conduct trials in which the accused can be barred from seeing secret evidence against him and in which military prosecutors are permitted to use evidence obtained thorough coercive interrogations. In addition, the administration wants to be able to introduce hearsay evidence.
In American courts, hearsay evidence is generally barred from use in a criminal trial, but the law recognizes important exceptions. Rather than relying on those exceptions, the Bush administration is asking Congress to create a blanket authorization at Guantánamo to allow hearsay when a military judge deems it probative and reliable.
"Hearsay statements from ... fellow terrorists are often the only evidence available in this conflict," states a draft administration bill circulating in Washington.
Attorney General Alberto Gonzales reinforced the point during a recent appearance before the Senate Armed Services Committee. "It is imperative that hearsay evidence be considered," Mr. Gonzales said. "Military commissions must try crimes based on evidence collected everywhere from the battlefields in Afghanistan to foreign terrorist safehouses," he said.
"This is a different kind of conflict," the attorney general added, "Oftentimes it's hard to verify or hard to have firsthand access" to witnesses or evidence.
Worries about allowing hearsay
Administration critics counter that the same can be said about organized crime leaders, international drug traffickers, spies, mass murderers, and a long list of terrorists, all of whom have been tried and convicted in US courts under existing hearsay rules.
South Carolina Sen. Lindsey Graham (R), an Air Force reserve officer and reserve military judge, has expressed concern about the administration's approach to hearsay.
"It would serve us well as a country to sit down and come up with a hearsay rule that has exceptions for the needs of the war on terror, not just ignore the hearsay rule in general," Senator Graham told Mr. Gonzales in a hearing last week. "There are 27 exceptions to the military hearsay rule," Graham said. "I'm willing to give you more."
But he suggested he is unwilling to write a blanket exemption for military commissions.
"To scrap the whole rule – to do that wholesale – is just asking for trouble," says Muneer Ahmad, a professor at American University's Washington School of Law, who serves as civilian counsel for Guantánamo detainee Omar Ahmed Khadr. "It is inviting unreliable evidence. It is inviting wrongful convictions, and at the end of the day it undermines the legitimacy of the entire system."
Defense lawyers say that, without a hearsay rule, military prosecutors would be able to present much of their case by simply calling federal agents or military intelligence officers to testify about any incriminating details a detainee may have revealed about a defendant during interrogation sessions. In some cases they may seek to rely on a written report.
The commission rules as currently proposed forbid introduction of evidence obtained under torture. But they do not bar evidence obtained under aggressive and coercive interrogation tactics.
"If you allow statements obtained through coercion and you allow hearsay, then you have invited all sorts of unreliable information in," Mr. Ahmad says.
Such statements would routinely be barred from use as evidence in a federal court or military court martial because it is difficult to know whether aggressive interrogation tactics elicited the truth or merely a false confession to end the coercion. Under the suggested military commission rules, there are no guidelines instructing military judges how to gauge the reliability of such testimony.
Marine Corps Major Michael Mori, the appointed military lawyer for Guantánamo detainee David Hicks, says new rules for detainee trials are not needed. The existing military hearsay rule and other rules of evidence, he says, already strike the proper balance for commission trials.
"The [administration's] goal is to remove decisions from an independent judge because they need to do that to ensure convictions," says Major Mori.
"It doesn't help anyone to use an unfair system," he says. "You either risk convicting an innocent person or you wind up providing a valid appeal for a person who is truly guilty to challenge their conviction."