When he struck down the military commission process at the US- run Guantanamo 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 Guantanamo 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 Guantanamo 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 …