looking at “all of the circumstances surrounding the taking of the statement, including the
degree to which the statement is corroborated, its indicia of reliability within the statement
itself, and whether the will of the declarant was overborne” determines that the “(I) the
statement is offered as evidence of a material fact; (II) the statement is probative (…); (III)
direct testimony of the witness is not available as a practical matter (…); and (IV) the
general purposes of the rules of evidence and the interests of justice will be best served by
admission of the statement into evidence”.1018 Furthermore, the MCRE prescribe that
“hearsay within hearsay is not excluded”.1019 Disclosure of information relating to hearsay
evidence is subject to the restrictions on disclosure of classified information.1020
c. Findings and analysis
399. All seven detainees currently facing military commission proceedings are “high-value
detainees” who were detained and interrogated in incommunicado detention as part of the
CIA RDI programme.1021 As a result, they were denied access to counsel for periods
ranging from at least several months to several years.1022 Such denial of access to legal
representation violates Article 14(3) of the ICCPR.1023 While the Geneva Conventions do
not set a strict time limit for access to a lawyer following the initial deprivation of
liberty,1024 it has been recognized that defendants have a right to legal counsel before
trial.1025 Further, international humanitarian law prescribes that, before and during his trial,
a defendant should have all necessary means to prepare his defence.1026 Therefore, where
the delay in legal representation impeded the ability of the accused to prepare his defence,
it also violated international humanitarian law.
400. The MCA 2009 and its implementing regulation provide for a defendant’s right to choose
the military defence counsel who will represent him at the costs of the government.1027
While this choice is reportedly very limited in practice,1028 a defendant may also choose to
1018
Ibid.
MCRE, Rule 805.
1020
MCRE, Rule 803(c).
1021
ICRC Report, op. cit., note 182, p. 5; Senate Study on the CIA RDI Programme, Executive Summary, op. cit., note 171, pp.
458-461; Gerry J. Gilmore, “High-Value Detainees Moved to Gitmo; Bush Proposes Detainee Legislation”, United States
Department of Defense website, 6 September 2006, <http://www.defense.gov/news/NewsArticle.aspx?ID=721>; “Defense
Department Takes Custody of a High-Value Detainee”, United States Department of Defense website, 27 April 2007, op. cit.,
note 181; ECtHR, Al Nashiri v. Poland, op. cit., note 172, para. 398.
1022
ICRC Report, ibid., pp. 7-8; Senate Study on the CIA RDI Programme, Executive Summary, ibid., pp. 458-461.
1023
See, also, UN HRC, Luciano Weinberger v. Uruguay, Communication No. 28/1978, 29 October 1980, paras. 12, 16,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f11%2fD%2f28%2f1978&La
ng=en>; UN HRC, Leopoldo Buffo Carballal v. Uruguay, Communication No. 33/1978, 27 March 1981, paras. 9, 13,
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f12%2fD%2f33%2f1978&La
ng=en>; UN HRC, Paul Anthony Kelly v. Jamaica, Communication No. 537/1993, 17 July 1996, para. 9.2, <http://www.un.org
/en/ga/search/view_doc.asp?symbol=CCPR/C/57/D/537/1993>; UN HRC, Adolfo Drescher Caldas v. Uruguay, Communication
No. 43/1979, 21 July 1983, paras. 13.3, 14, <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=
CCPR%2fC%2f19%2fD%2f43%2f1979&Lang=en>.
1024
“Customary International Humanitarian Law, Rule 100”, ICRC website, op. cit., note 643.
1025
Third Geneva Convention, Art. 105(3); Pejic, “The protective scope of Common Article 3”, op. cit., note 145, pp. 211-214.
1026
API, Art. 75(4)(a); Third Geneva Convention, Arts. 84, 99, 105; Fourth Geneva Convention, Art. 72; Common Article
3(1)(d); ICTY, Prosecutor v. Blagoje Simić, Miroslav Tadić, and Simo Zarić, op. cit., note 789, para. 678;
“Customary International Humanitarian Law, Rule 100”, ICRC website, op. cit., note 643.
1027
MCA 2009, § 949c(b)(2); RMC, Rule 506(a) and (c)(1).
1028
“The (…) small pool of attorneys assigned to the defense office, coupled with the real potential for conflicts arising from an
attorney representing more than one detainee renders the statutory language effectively meaningless”. Glazier, “Destined for an
1019
175
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