Defense Department Announces Proposed Rule Changes to Military Commissions
May 15, 2009

The President has determined to reform military commissions as an available forum, along with the federal courts, for the prosecution of detainees at Guantanamo.

As part of that, the secretary of defense will be sending to Congress several changes to the rules for military commissions. These rule changes do not require a change in law, but the law does require that DoD gives Congress 60 days’ notice before the rules are implemented. DoD believes these rule changes will improve the process. The effect of these proposed rule changes are:

• Statements obtained using interrogation methods that constitute cruel, inhuman and degrading treatment will no longer be admitted as evidence at a trial.
• Limits use of hearsay. For hearsay, shifts the burden of proof to the party who offers it. The burden is no longer on the party who objects to hearsay to disprove its reliability; the burden is now on party who offers it to prove its reliability.
• To permit the accused greater latitude in selecting his defense counsel.
• To provide greater protections for the accused who refuses to testify. Current practice permits the judge to instruct the jury that it may consider the fact that the accused refused to testify and subject himself to cross-examination if he offers his own prior hearsay statements. This practice would be eliminated.
• Jurisdiction. The rule changes would codify existing practice that military commissions judges may establish the jurisdiction of their own courts. Under prior practice, jurisdiction for a military commission to hear a case was established by a prior Combatant Status Review Tribunal.

In the pending military commissions cases, the government will also seek an additional 120-day continuance of the cases, while the rule changes are reviewed by Congress, and the administration continues to develop its legislative proposals.

*Continuance date corrected on 15 May 2009.