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Former Navy JAG urges end to military commissions at Senate hearing

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] Retired Rear Admiral John Hutson, formerly the US Navy's Judge Advocate General, argued Tuesday that the Military Commissions Act of 2006 (MCA) should be repealed rather than reformed. At a hearing before the Senate Armed Services Committee, Hutson said that although he was an "early and ardent supporter of military commissions," the process created to try enemy combatants "did not live up to the traditions" of the Uniform Code of Military Justice (UCMJ) and had become a "significant distraction for the military." Hutson said that if the goal of revamping the military commission rules is to ensure convictions of suspected terrorists "then it isn't really a court," but a "charade." Pointing to the successful prosecution of terrorism suspects in federal courts, Hutson said: It is not only unnecessary, it is inappropriate for to operate a system of justice in parallel to. The UCMJ and the courts-martial it creates are absolutely necessary to ensure our effective fighting force. But for some of the same reasons that the Posse Comitatus Act prevents the military from enforcing laws against U.S. civilians, we should resist the temptation of using the military to prosecute foreign criminals when DoJ can perform that critical function quite well.Hutson also said that the current rotation schedule of military personnel would have to be changed to allow military judges, prosecutors, and defense counsel to achieve the expertise of their civilian counterparts, but that to do so would be "the tail of terrorist prosecutions wagging the warfighting dog." He summarized that "e don't ask DoJ to fight wars. We shouldn't ask DoD to prosecute terrorists." Hutson was among six witnesses, including DOD General Counsel Jeh Johnson, Assitant Attorney General for National Security David Kris, and current Navy JAG Vice Admiral Bruce MacDonald, who testified before the committee regarding legal issues surrounding the detention and trial of those accused of violating the law of war. Last month, the committee approved a version of the National Defense Authorization Act for Fiscal Year 2010 that would reform the use of classified, coerced, and hearsay evidence and allow defendants greater access to exculpatory evidence. Committee Chairman Carl Levin (D-MI) said that the changes were necessary for the military commissions to be considered "regularly constituted courts" within the meaning of the 2006 Supreme Court decision in Hamdan v. Rumsfeld. In May, US President Barack Obama announced that he would use the controversial military commissions system to try some Guantanamo Bay detainees. The move drew criticism from human rights groups, which called the plan "fatally flawed," continuing a long line of criticism of the commissions for admitting some evidence that is barred from federal court, including hearsay or coerced confessions. In January, Obama issued an executive order directing the military prison be closed "as soon as practicable and no later than one year from the date of this order."

Full post as published by JURIST - The Paper Chase on July 07, 2009 (boomark / email).