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Top Defense Lawyer Calls for Military Commissions Reform

By Army Sgt. 1st Class Michael J. Carden
American Forces Press Service

WASHINGTON, July 7, 2009 – Closing the U.S. detention center in Guantanamo Bay, Cuba, and reforming military commissions will enhance national security, the Defense Department’s chief legal advisor said today before Congress.

Echoing President Barack Obama’s recent call to reform the Military Commissions Act of 2006, General Counsel Jeh C. Johnson told the Senate Armed Services Committee that he welcomes the opportunity to help change military commissions into a more viable forum.

“By working to improve military commissions to make the process more fair and credible, we enhance our national security by providing the government with effective alternatives for bringing to justice those international terrorists who violate the laws of war,” Johnson said.

Under the Senate’s recent Defense Authorization Act, several provisions were made to reform the 2006 legislation. Johnson expressed confidence in the ability of the Obama administration and Congress to continue working together to improve the law.

“Military commissions can emerge from this effort as a fully legitimate forum,” he said.

The new legislation proposes changes that ban in-court use of statements obtained by cruel interrogation methods, which Johnson said will “go a long way toward enhancing the legitimacy and credibility of commissions.”

Johnson also addressed the need for a program to monitor detainees even after they are transferred from Guantanamo Bay to accepting nations. He stressed the concern that terrorists and enemy combatants might return to the battlefield.

“It’s not as simple as, ‘Oh X-Y-Z country is willing to take the detainee back,” he said. “There needs to be in place an adequate rehabilitation program to monitor in that accepting nation … [so] that we minimize to the fullest extent possible any acts of recidivism for those who are transferred or released.”

“The safety of the American people is the utmost concern,” he continued. “So we believe strongly that rehabilitation programs are something that we should encourage, promote. It’s something we’re very focused on.”

Navy Vice Adm. Bruce MacDonald, the Navy’s Judge Advocate General, also spoke before the committee and expressed support for military commissions reform and the Defense Authorization Act. The new legislation addresses concerns he had with the enactment of the 2006 law, he said.

“I believe that the [Defense Authorization Act] establishes a balanced framework to provide important rights and protections to an accused while also providing the government with the means of prosecuting alleged alien, unprivileged enemy belligerents,” MacDonald said.

Witnesses, including Johnson and MacDonald, however, asked for certain clarity regarding the new bill.

MacDonald recommended the committee develop a list of considerations to be evaluated in determining the extent in which a statement may be corroborated as well as the overall reliability of the statement.

But overall, MacDonald stressed the importance of having “full faith and confidence that what we’re creating in the military, in this bill, is a fair and just process.”

“It’s absolutely vital that when we leave here at the end of the day, it’s not because we believe that what we’ve created is a second-class legal system,” he said. “You ought to feel very comfortable sending anybody to this commissions process with these changes, because we believe it’s a fair and just system.”

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Biographies:
General Counsel Jeh C. Johnson


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