Article 75 and Its Implications on Military Commissions

Cully Stimson / March 11, 2011

In addition to the always outstanding analysis provided by Bobby Chesney and John Bellinger on the Obama administration’s new executive order on GTMO detention review, and the accompanying “Fact Sheet“, there is another fascinating feature that merits discussion.

Here’s the question: by recognizing Article 75 of Additional Protocol I of the Geneva Convention (API) as customary international law, which includes in §4(g) the “right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf,” has the administration inadvertently (or intentionally) invoked the Confrontation Clause of the Sixth Amendment, thereby potentially gutting the relaxed rules on the admission of hearsay available to both sides in military commissions? (more…)