Draft Military Commissions Manual Allows Hearsay, Some Classified Evidence

A draft manual detailing how the military will handle trials for enemy combatants will allow hearsay evidence against the defendants, but classified evidence deemed too hot to be seen by the defendant will not be allowed at trial, military officials said Thursday.

The Pentagon on Thursday sent Congress its new "Manual for Military Commissions," which was written to follow the guidelines of the Military Commissions Act of 2006 that President Bush signed into law in October. The law gives guidelines for trying enemy combatants detained in the War on Terror and now in prison at Guantanamo Bay, Cuba.

Click here to view the 238-page manual (Note: large .pdf file).

Since October, the Pentagon has been drafting procedures for handling military commissions with input from the Department of Justice. Under the manual, defendants could be eligible for the death penalty under certain charges.

Principal Deputy General Counsel Dan Dell'Orto and Office of Military Commissions legal adviser Brig. Gen. Thomas Hemingway said the military commissions process is very similar to courts martial conducted for military personnel.

"The act and the procedures contained in this manual will ensure that alien unlawful enemy combatants who are 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," Dell'Orto told reporters at the Pentagon.

Rep. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, said he planned to scrutinize the manual to ensure that it does not "run afoul" of the Constitution.

"I have not yet seen evidence that the process by which these rules were built or their substance addresses all the questions left open by the legislation," Skelton said.

The Defense Department officials said the new rules would allow for the admission of hearsay evidence in some cases. Officials said hearsay would be permitted but only after judges screen the evidence for fairness.

"The statute provides for the admissibility of hearsay evidence, to take into account, I think, the unique conditions under which evidence will be obtained on the battlefield," Dell'Orto said. But he added that both sides have an opportunity to enter hearsay evidence, "and the only evidence that will be submitted before the members [of the commissions] ultimately will be evidence that the judge determines to be reliable and probative."

The officials said the manual does not allow statements obtained by torture — by any nation — to be used in these cases. These Pentagon officials said they had not seen a case yet related to these detainees where an allegation of torture has been made.

The manual does allow for testimony that has been obtained in alleged cases of coercion.

"Statements 'in which a degree of coercion is disputed' may be admitted if reliable, probative, and the admission would be serve the interests of justice. ... In addition, for such statements obtained after Dec. 30, 2005, the methods used to obtain those statements must comply with the Detainee Treatment Act of 2005." The act lays out cruel, inhuman or degrading treatment of military and CIA prisoners and bans those actions under new penalties for troops and agents.

Similar to other U.S. legal proceedings, the case must begin under a presumption of a defendant's innocence and prosecutors must prove the case beyond a reasonable doubt. Also, the accused will be provided evidence that will be used against him or her prior to trial. The detainee also will be given a "reasonable opportunity" to obtain evidence and witnesses.

Classified evidence will be allowed, but whatever is presented to the commission holding the trial must be presented to the defendant, Dell'Orto said. Presiding judges will be able to screen classified evidence ahead of time to prevent it from being entered into the record.

"The statue provides that the accused will be permitted to be exposed, or to see all the evidence that is provided to the members. So no evidence will be admissible that the accused, themselves, has not seen," Dell'Orto said.

Given that the trials will deal with some level of classified information, Dell'Orto said, the manual lays out procedures that allow the judge to decide "whether certain matters should either be redacted, certain summaries should be provided, or other substitutes used for the classified evidence if the government was resisting putting that evidence before the court."

"If he were to say, 'Look, you haven't done enough to provide enough substance in this,' then the government [prosecutors] would have to go back and decide whether it will then have to respond by either offering that evidence or perhaps making another decision as to how to proceed with the case," Dell'Orto said.

Dell'Orto said that under the manual, there's no chance that evidence could be used against a defendant that the defendant had not seen. "Although the judge might see it, [it] would never be introduced into the courtroom if he, the judge, was not satisfied that there was an adequate substitute — unclassified substitute for the classified evidence."

Prosecutors and defense lawyers assigned to detainee cases had not seen this manual before today. Nevertheless, Hemingway and Dell'Orto predicted detainee cases would start "soon."

A Defense Department official who did not wish to be identified told FOX News that some pre-trial hearings are likely to begin sometime this spring, and the hope is the first cases could move forward as soon as this summer.

Susan Crawford, former chief Judge of the U.S. Court of Appeals of the Armed Forces, will head the military commissions.

FOX News' Mike Emanuel and Nick Simeone and The Associated Press contributed to this report.