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
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
"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
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
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
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 based on evidence collected
everywhere from the battlefields in Afghanistan to foreign terrorist
safehouses," he said. …