Guantanamo detainees’ trial rules set

The Pentagon paved the way Thursday for trials of detainees being held at Guantanamo Bay, issuing new rules that activate the nation’s controversial law on interrogating and prosecuting terrorism suspects.

The military plans to charge 60 to 80 of Guantanamo’s 395 or so detainees under the rules unveiled Thursday. Trials are expected to begin this spring, officials said, but the so-called high-value detainees formerly held by the CIA will probably not be among the first to be given hearings.

Instead, the military will probably first issue new charges against the 10 detainees who were first brought to court under the old commission rules that were tossed out by the Supreme Court in June. Their trials have been on hold since the court ruling.

The rules implement the controversial compromises worked out last year by Congress in the Military Commissions Act -- including provisions that ban the use of statements obtained through torture but allow some coerced statements to be admitted with a judge’s permission. The law was enacted in the weeks before the midterm election, pushed by Republicans as a national security issue in a last-ditch effort to retain control of Congress.

Rights eliminated

The Pentagon’s rules, as expected, create a legal system for Guantanamo detainees that eliminates Miranda rights and search warrants, legal protections that officials say make little sense for suspects captured on the battlefield.

But the rules have touched off new debate over the role of harsh interrogations -- and torture -- in prosecutions. In some cases, the rules appear to exceed the Military Commissions Act in relaxing usual standards of American jurisprudence by allowing potentially tainted evidence.

For instance, the new Pentagon rules say statements obtained through torture cannot be used as evidence. But if the questionable treatment of a detainee yielded physical evidence -- like an incriminating document revealed by the detainee -- that information could be used.

Under normal U.S. court practices, such evidence is excluded, considered “fruit of the poisonous tree.”

Angry reaction

Human rights organizations reacted angrily to that Pentagon rule, arguing that the use of tainted evidence sent the message that torture was sometimes justified.

“As long as you are willing to use what was obtained by torture, you are endorsing torture,” said Jumana Musa, an advocacy director for Amnesty International.

Military defense lawyers who represent the detainees also criticized the rule.

“When we move from the established rules of evidence, we risk using a system that won’t produce a credible result,” said Marine Maj. Michael Mori, who represents Australian detainee David Hicks.

The Military Commissions Act does not explicitly refer to the exclusion of evidence obtained through torture. Administration officials have argued that if Congress wanted all physical evidence obtained through torture to be thrown out, it would have said so.

A House committee report on that chamber’s version of the military commissions bill said last year that House members intended to allow limited use of potentially tainted evidence and to eliminate the poisonous-tree doctrine. Administration officials said it made little sense in a terrorism case that might involve investigators or soldiers from several different nations to eliminate reliable physical evidence just because there was a question about how it was obtained.

But Sen. Christopher J. Dodd (D-Conn.) said he objected to the admission of coerced evidence and to other provisions included in the new rules, and said he intended to introduce legislation to address what he considered flaws in the Military Commissions Act.

Delay rejected

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) and Sen. John McCain (R-Ariz.), the committee’s senior Republican, wrote to the Defense Department to ask that the rules be delayed so Congress could be consulted. That request was rebuffed.

Some Republicans pushing the law in the fall argued that quick passage was necessary to quickly try Khalid Shaikh Mohammed, who is accused of organizing the Sept. 11 attacks. But Thursday, military officials indicated the most notorious accused terrorists would wait for their turns before the military commissions.

“As far as the 14 high-value detainees,” said Air Force Brig. Gen. Thomas L. Hemingway, legal advisor for the Pentagon’s Office of Military Commissions, “those cases are going to have to be developed carefully, and it’s going to take some time, because they are extraordinarily complex.”

Legal limbo

Pentagon officials say most Guantanamo detainees will probably never be tried for war crimes before a military commission. U.S. officials hope to return 110 to their home countries. With 60 to 80 expected to face a commission, that would leave about 200 detainees in legal limbo. Those detainees get annual hearings on their status, but there are no plans to prosecute or release them, military officials said.

Military officials plan to hold the trials at Guantanamo Bay. But neither the new rules nor the Military Commissions Act require that the trials be held there.

“They could be held anywhere,” said Daniel J. Dell’Orto, the principal deputy general counsel. “But obviously, we have facilities at Guantanamo. The accused, or at least the detainees, are there. The logical place for them to be tried would be Guantanamo.”

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julian.barnes@latimes.com