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Gitmo trial rules would allow coerced statements

Story Highlights

• Pentagon submitting guidelines to Congress
• Rules in manual permit hearsay evidence, coerced statements
• Evidence obtained via torture OK if from before December 30, 2005
• Trials would make use of military commissions as courts
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WASHINGTON (CNN) -- Defense Secretary Robert Gates is submitting to Congress a manual for trials of detainees being held at Guantanamo Bay that would allow the admission of hearsay evidence and coerced testimony, a Pentagon official told reporters Thursday.

The manual was drafted to comply with a law passed last year that restored the Bush administration's military commissions created to try terrorist suspects.

The Supreme Court had struck down the commissions as unconstitutional. (Watch a detainee's family tell about his letter home Video)

The procedures outlined in the manual "will ensure that unlawful enemy combatants suspected of war crimes and certain other offenses are prosecuted before regularly constituted courts affording all the judicial guarantees which are recognized as indispensable by civilized people," said Principal Deputy General Counsel Dan Dell'Orto.

Dell'Orto called the manual "the most comprehensive legal framework for the prosecution of war criminals in U.S. history."

The rights of the accused are "very much the same" as those in a court-martial, he said.

About 400 detainees are being held at the U.S. military prison at Guantanamo Bay, Cuba.

Dell'Orto said the manual calls for the accused to be presumed innocent and requires that convictions be based on guilt proven beyond a reasonable doubt.

Independent counsel will "represent defendants zealously and protect against even the appearance of unlawful influence" in a jury system comparable to that used by general courts-martial, he said.

Defendants are further to be provided with evidence before its admission in court, he said.

Admission of classified evidence outside the presence of the accused is prohibited, he said.

In addition, the accused must be granted "a reasonable opportunity" to obtain evidence and witnesses," and are granted the right to protection against self-incrimination, he said.

Anyone found guilty has the right to appeal, first to a court of military commission review, then to the Circuit Court of the District of Columbia and finally to the Supreme Court of the United States, he said.

The statute provides for the admissibility of hearsay evidence, an issue of contention among defense lawyers. Dell'Orto said the admission of such evidence should not necessarily weigh against defendants, since they, too, can enter such evidence, which thereby "levels the playing field, if you will."

And both sides can attack the credibility of witnesses, he said.

Brig. Gen. Thomas Hemingway, a legal adviser to the Office of Military Commissions, told reporters that the manual provides for a "clear prohibition of evidence obtained by torture" if it was obtained after December 30, 2005.

But if it was obtained before that time, and if the judge determines that it is reliable, it may be admitted, he said.

No evidence -- not even classified evidence -- will be admissible that the accused has not seen, but the manual lays out procedures under which the government could ask the judge to rule on whether "certain matters should be redacted," or summarized or replaced with substitute evidence, Hemingway said.

Dell'Orto predicted that, with the manual's completion, cases "will be moving forward soon."

The cases of 14 "high-value" detainees "will take some time because they are extremely complex," he said.

Of the nearly 400 detainees, 60 to 80 are facing potential charges for violations of the law of war, he added.


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