88 | Towards the Closure of Guantanamo the prohibition against ex post facto laws; the admissibility of hearsay evidence; and the independency of the judiciary. In addition, military defense counsel claim that they are not entitled to “equal” access to witnesses and evidence as per courtsmartial practice, but “reasonable” access. Further, Military Commission Rule 1(5) provides that “[a] Military Judge may modify, change, or determine that a certain Rule of Court or any portion thereof is not applicable to a given trial by Military Commission,” which makes the court rules a moving target allowing judges to deviate from the rules as he or she sees fit. 238 206. Although there has been a change in the language of the 2009 MCA to the effect that no statement directly derived from torture will be used, the defense maintains certain concerns in this regard. In a public hearing held at the IACHR on March 16, 2015, military defense counsel alleged that current Military Commission Rules of Evidence continue to allow the admissibility of evidence derived from torture and coercion, contrary to what has been stated over the years. 239 207. In order for the defense to convince the judge to reject a statement as the product of abuse, the defense has to know the conditions under which the statement was given. However, given that those circumstances can be subjected to classification restrictions, the defense may not obtain access to the information required to make that showing. Further, coerced, involuntary statements by witnesses other than the accused are admissible if the judge finds the statements are reliable and probative, and that it is in the “interest of justice” to allow them. 240 Another issue that is pending and may be litigated is the question of derivative evidence from torture. In Guantanamo military commissions an out-of-court admission by the defendant does not need to be corroborated, leaving open the prospect that a prisoner could be convicted based on a single, uncorroborated “confession” that may or may not have been the product of abuse or torture. 208. Military defense counsel also argues that extremely broad hearsay rules prevent lawyers from cross-examining witnesses. In federal courts a witness must be “unavailable,” whereas in Guantanamo military commissions, the Government can use hearsay evidence whenever it is not “practical” to bring the witness to Guantanamo. This, according to defense lawyers, means that they lose the ability to confront and cross-examine witnesses. They emphasize that, although hearsay has to meet some sort of reliability standards, it is still admissible. The judge decides whether to admit the evidence after considering the circumstances and whether “the interest of justice” would be served should the statement be admitted. As Justice Scalia expressed in more general terms, “[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”241 238 239 240 241 IACHR, Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013. IACHR’s hearing, Human Rights Situation of Persons Deprived of Liberty at the Guantanamo Naval Base, United States, 154 Period of Sessions, March 16, 2015. Military Commission Rules of Evidence, Rule 304(e)(3). United States v. Rankin, 64 M.J. 348, 351. (C.A.A.F. 2007), applying Crawford v. Washington, 541 U.S. 36, 61 (2004) to courts martial. Organization of American States | OAS