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Homeland Security

23 October 2006

U.S. Official Explains New Military Commission Law

State's Bellinger says accused will receive full and fair trials

Washington -- War on Terror detainees now in U.S. custody will receive “full and fair trials,” a senior State Department legal adviser says, adding that the CIA will not resume any programs of secret detention without approval from Congress.

John Bellinger, legal adviser to Secretary of State Condoleezza Rice, says it is “clearly an uphill battle” trying to explain U.S. detention policies to foreign audiences. Bellinger briefed reporters at the Foreign Press Center in Washington October 19, two days after President Bush signed the new Military Commissions Act of 2006 into law. (See related article.)

Military commissions for suspected terrorists will “provide full and fair trials that are very much similar to all of the protections that we have both in our federal criminal trials and in our [military] courts-martial,” Bellinger said.

However, he said, the United States has “not done a very good job” discussing its detention policies and trial process with non-U.S. audiences. “As a result, a lot of inaccurate perceptions have grown up.”

For the past 10 months, Bellinger has been meeting with overseas audiences to discuss detention issues. The new law, he said, “fully addresses all of the concerns that the U.S. government and the State Department have heard over the years with respect to the military commissions.”

These concerns include:

Military trials instead of civilian trials. “Around the world, there is a general … concern about trying people in military commissions at all,” Bellinger said. “In many parts of the world, particularly in Europe, there just simply is not a military justice system.  The United States has had a very long and honorable and robust system of military justice that’s parallel to our domestic criminal justice system.” U.S. military personnel worldwide are subject to a body of law known as the Uniform Code of Military Justice, signed into law by President Truman in 1950. For more than half a century, military cases have been reviewed by civilian judges and can be appealed to the U.S. Supreme Court.

Right of the accused to be present in the courtroom. Under the new Military Commission Act, those accused of crimes have “the right to be present at all times during the trial,” Bellinger said. The accused may not be excluded from hearing any of the evidence against him. In addition, the U.S. government is required to show the accused any evidence that would show that the accused might be innocent of a crime. However, the U.S. government is not required to turn over all of its files on an individual if information contained in those files is not part of the trial, he said.

Right to counsel. Those accused of crimes will be assigned a military defense counsel and would have the right also to engage a civilian lawyer. Bellinger said military defense lawyers already have demonstrated “zealous advocacy” on behalf of their assigned clients. The case of Hamdan v. Rumsfeld was appealed to the U.S. Supreme Court by military defense lawyers representing Salim Ahmed Hamdan. As a result, the Supreme Court in June found that President Bush’s proposed military commissions were unconstitutional. The Military Commissions Act of 2006 was developed by Congress to address concerns raised in the Supreme Court decision.

Right to appeal. Under President Bush’s original military commissions proposal of 2002, someone convicted by a military court could appeal only to a special military court, Bellinger said. Under the new law, the accused has a right to appeal to a special Military Commission Review Panel, then to a federal civilian circuit court in the District of Columbia, then to the U.S. Supreme Court.

Coerced evidence. “Let me be clear about this,” Bellinger said. “Evidence that is derived from torture may not be admitted. No evidence derived from torture may be introduced against the accused. There’s a treaty obligation under the Convention Against Torture that we may not do that, and we won’t do it. And it’s in the military commission statute.” In addition, if the accused alleges that a statement was derived from coercion, then it cannot be admitted into the trial unless the judge determines that “it would be in the interest of justice and fairness to introduce that information,” Bellinger said. For any statement taken after the passage of the December 2005 Detainee Treatment Act, the judge also would have to determine that the taking of the statement “did not violate the prohibition on cruel, inhuman or degrading treatment,” Bellinger said. Bellinger added that U.S. criminal law “has no flat prohibition” on coercion. Instead, “if a defendant raises a concern about his treatment, the judge will listen to what happened and make a determination as to whether the coercion that allegedly occurred would be contrary to our Constitution.”

Geneva Common Article 3. The U.S. Supreme Court has determined that non-U.S. terrorist suspects held in U.S. custody fall under Common Article 3 of the Third and Fourth Geneva Conventions, which govern the treatment of prisoners of war and civilians during military conflict.Article 3 of the Conventions guarentees a minimum set of rights for all individuals taken into custody, even if they are deemed to be prisoners of war or protected civilians. This minimal guarantee includes the “prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment.” Bellinger said the wording of the treaty language is “vague,” and the Military Commissions Act of 2006 specifies nine criminal acts which, if committed by Americans, would be a violation of Common Article 3. Prohibited acts include: torture; cruel or inhuman treatment (to include mental or physical abuse); performing biological experiments; murder; mutliation or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and taking hostages.

Habeas Corpus. The U.S. Constitution protects individuals against wrongful detention, requiring the government either to charge someone in custody with a crime or release him. This right is known by the Latin term habeas corpus. However, Bellinger said that habeas corpus applies to criminal law, not wartime situations. The Geneva Conventions do not address habeas corpus, and international law has recognized the right to hold enemies in detention. “As in any military conflict, there is no right to habeas corpus,” Bellinger said. “No individual in any military conflict in American history has ever had the right to habeas corpus.” U.S. defense attorneys have filed habeas corpus cases in U.S. courts for many of the people being held at the Guantanamo Bay detention facility in Cuba. The new Military Commission Act addresses habeas corpus, meaning that current cases will have to be refiled in federal courts. However, he said, “individuals will continue to have the right to bring their cases into our federal courts.”

CIA detention program. President Bush, in signing the Military Commissions Act of 2006, said the new law preserves the ability of the CIA to hold and question suspects in overseas facilities. Bellinger stressed that military personnel and CIA personnel both will be held to the same standard of conduct. He also said Congress would have to be notified before any CIA detention programs are resumed. “The act itself does not specifically address the CIA program, which the president said … would continue as a way to question senior members of al-Qaida who we may detain in the future,” Bellinger said. “What the Military Commissions Act does is: It now makes clear what the legal standard is for the treatment and detention of those individuals. No program will go forward, though, until it has been briefed to our Congress.”

For more information, see Detainee Issues.

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site:

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