Possible Rule Changes for Gitmo

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TIME has obtained a variety of internal memos circulating at the Department of Defense that detail possible rule changes at Gitmo, if the camp and its controversial legal system survive. The proposals — under discussion but not formally adopted — could be included in the Pentagon's official "Manual for Military Commissions," a handbook of rules for the controversial proceedings. What follows are excerpts from those memos.

Mil. Comm. R. Evid. 513.

The rule creates a psychotherapist-patient privilege for the detainees, and greatly restricts the government's access to mental health records. This will doubtlessly result in considerable litigation, where allegations of torture and abuse are raised at trial.

Big picture: the most basic rule is that the law is entitled to all the evidence, in order to assure a fair trial. The rules relating to privileges are exceptions to that general rule; rules creating privileges deny the parties access to certain kinds of evidence. The legal theory is that the public's interest in protecting the privilege outweighs the public's interest in having all the evidence for a fair trial. Some are obviously necessary (e.g. lawyer-client), some are more historical than practical (e.g. priest-penitent), and some are quite questionable (e.g. spousal privilege). The theory underlying the psychotherapist-patient privilege is that it is more important for the patient to have unfettered access to mental health care than it is for the government to have access to the mental health records. In Jaffee v. Redmond, the Supreme Court found that was true for the people in the US. But I think it is a fair question of whether that would be true for the detainees. The treating physicians do not really develop true psychotherapist-patient relationships — they do not use their real names; most do their counseling with guards present; and there is no significant possibility they will join the US population after their release. I submit MCRE 513 is not appropriate as a policy matter for the detainees.

Amend Mil. Comm. R. Evid. 501.

Mil. Comm. R. Evid. 501 is taken from the military rules, but it did not include 501(d), which specifically rejected the physician-patient privilege. The government's ability to obtain access to detainee medical records has become a big issue. Under the existing law, there is no basis for denying the government such access. Amending this rule to conform to military practice would help clarify this issue. /

Accused's Presence at Trial

The language of the MCA (949a(b)(1)(B), 949d(a)(2), and 949d(b), in particular) is unequivocal: except for clearly defined situations, the accused "shall be present at all sessions." Article 39, UCMJ, is even more stringent; the only provision for conducting a session outside the accused's presence is if the accused is accompanied by counsel at a VTC location for an Article 39(a) session. Nonetheless, based on early military case law, a court-martial is permitted by RCM 804 to proceed, even through findings and sentence, in the event of post-arraignment, voluntary absence of the accused.

While there are significant differences in the circumstances of the two groups of defendants, and in the rights provided them, RMC 804 differs little from RCM 804. Should an accused confined at GTMO be permitted to elect whether he will attend the sessions of his own military commission, contrary to the MCA?

There are likely to be other positions or approaches, but two avenues are suggested below:

1. Amend RMC 804 to add RMC 804(c)(1)(2):
"(1) The accused does not have a right to be absent from any military commission proceedings; however, the military judge may permit the voluntary absence of the accused following an inquiry, on the record, sufficient to establish:
(a) that the accused's request for absence is personal, knowing, and voluntary, and
(b) that the prosecution will not be disadvantaged by the accused's absence.

(2) Unless removed for cause by the military judge, an accused who has voluntarily absented himself from the proceedings may elect to be present at any future session of the commission. Following such an election, at the accused's first renewed presence at the proceedings, the military judge may conduct such inquiry as may be necessary in the interests of decorum and the integrity of the proceedings."

Amend the Discussion following RMC 804 to add the following explanation of the new 804(c)(1)(b): "In addition to issues of identity, the government has a legitimate interest in the accused's presence at trial, including promoting the appearance and actuality of legitimacy in the proceedings.

2. Amend RMC 804 to delete Discussion and mirror MCA 949a(b)(1)(B) and 949d(a)(b), requiring presence of the accused at all proceedings, unless removed by MJ for disruption or threats to physical safety.