The American Civil Liberties Union filed a Freedom of Information Act request Wednesday to gain access to a legal memo prepared by the Justice Department’s Office of Legal Counsel (OLC) that reportedly contains information on the constitutional rights that Guantánamo detainees could legally claim during military commission proceedings in the U.S.
Additionally, the May 4 memo is said to also contain details about the admissibility of statements obtained through coercion and torture in those proceedings.
David Barron, the OLC’s Acting Assistant Attorney General, sent the memo to a Justice Department task force also on May 4. The memo’s existence was first disclosed in a Wall Street Journal report June 29.
According to the Journal report:
The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.
The conclusion, explained in a confidential memorandum…could alter significantly the way the commissions operate — and has created new divisions among the agencies responsible for overseeing the commissions.
The Journal report also discussed the memo’s position that federal courts would find coerced evidence inadmissible under the Constitution in military commission trials.
Mr. Barron advised that federal courts were unlikely to require strict adherence to Bill of Rights provisions spelling out specific procedures, such as the Sixth Amendment speedy trial right, or the Miranda warning, which the Supreme Court imposed in 1966 to ensure compliance with the Fifth Amendment right against self-incrimination and the Sixth Amendment right to an attorney.
But Mr. Barron advised that courts were likely to view the use of coerced statements to convict and punish defendants as violating any definition of the Fifth Amendment’s Due Process Clause, which courts have cited in establishing a baseline of fundamental rights. As a result, some officials believe a legislative fix to the Military Commissions Act should include additional rights for defendants in order to lower the chances courts would strike it down.
The Pentagon, meanwhile, objects to Barron’s legal conclusion.
“We believe that military commissions, as distinct from other courts, are designed to not provide constitutional rights,” said Navy Capt. John F. Murphy, the Obama administration’s chief military prosecutor.
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 Senate is currently debating a draft of the defense authorization bill that includes language to revise the military commissions, which would permit the admissions of some evidence obtained through coercion.
Justice Department officials, however, have testified that the Obama administration’s position is that the standard for admission of evidence must be “voluntariness,” and that the admission of evidence obtained through coercion in military commissions should not be permitted.
According to the ACLU, Barron’s memo has not been turned over to lawmakers debating changes to the structure of 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.”
Barron, a Harvard Law School professor, is temporarily in charge of OLC while President Obama’s nominee, Dawn Johnsen, a fierce critic of the Bush administration’s torture policies and the legal work conducted by former OLC attorneys, awaits Senate confirmation.