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Department of Defense releases the 2010 edition of the Manual for Military Commissions (MMC)

The Department of Defense has just released the 2010 edition of the Manual for Military Commissions. It can be found here in pdf.

HT: Professor Bobby Chesney, who highlights provisions on hearsay and material support, excepted below:

SECTION VIII

HEARSAY

Rule 801. Definitions

The following definitions apply under this rule:

(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person,

if it is intended by the person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than the one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to

cross-examination concerning the statement, and the statement is (A) inconsistent with the

declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing,

or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is

offered to rebut an express or implied charge against the declarant of recent fabrication or improper

influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is (A) the

party’s own statement in either the party’s individual or representative capacity, or (B) a statement

of which the party has manifested the party’s adoption or belief in its truth, or (C) a statement by a

person authorized by the party to make a statement concerning the subject, or (D) a statement by

the party’s agent or servant concerning a matter within the scope of the agency or employment of

the agent or servant, made during the existence of the relationship, or (E) a statement by a coconspirator

of a party during the course and in furtherance of the conspiracy. The contents of the

statement shall be considered but are not alone sufficient to establish the declarant’s authority under

paragraph (C), the agency or employment relationship and the scope thereof under paragraph (D),

or the existence of the conspiracy and the participation therein of the declarant and the party against

whom the statement is offered under paragraph (E).

Rule 802. Reserved.

Rule 803. Admissibility of hearsay

(a) Hearsay evidence may be admitted in trials by military commission if the evidence would be

admitted under the rules of evidence applicable in trial by general courts-martial, and the evidence

would otherwise be admissible under these Rules or this Manual.

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(b) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by

general courts-martial may be admitted in a trial by military commission only if—

(1) the proponent of the evidence makes known to the adverse party, sufficiently in advance

to provide the adverse party with a fair opportunity to meet the evidence, the proponent’s intention

to offer the evidence, and the particulars of the evidence (including information on the

circumstances under which the evidence was obtained); and

(2) the military judge, after taking into account all of the circumstances surrounding the

taking of the statement, including the degree to which the statement is corroborated, the indicia of

reliability within the statement itself, and whether the will of the declarant was overborne,

determines that—

(A) the statement is offered as evidence of a material fact;

(B) the statement is probative for which it is offered;

(C) direct testimony from the witness is not available as a practical matter, taking

into consideration the physical location of the witness, the unique circumstances of military and

intelligence operations during hostilities, and the adverse impacts on military or intelligence

operations that would likely result from the production of the witnesses; and

(D) the general purposes of the rules of evidence and the interests of justice will best

be served by admission of the statement into evidence.

(d) The disclosure of information under this section is subject to the requirements and limitations

applicable to the disclosure of classified information in Mil. Comm. R. Evid. 505 and 506 as

applicable.

Rule 804.

Reserved.

Rule 805. Hearsay within hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined

statements would be admissible in a military commission convened under chapter 47A of Title 10.

Rule 806.

Reserved.

Rule 807. Attacking and supporting credibility of declarant

When a hearsay statement, or a statement defined in Mil. Comm. R. Evid. 801(d)(2)(C), (D), or (E),

has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may

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be supported, by any evidence which would be admissible for those purposes if declarant had

testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent

with the declarant’s hearsay statement, is not subject to any requirement that the declarant may

have been afforded an opportunity to deny or explain. If the party against whom a hearsay

statement has been admitted calls the declarant as a witness, the party is entitled to examine the

declarant on the statement as if under cross-examination.

(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.

a. Text. “Any person subject to this chapter who provides material support or resources, knowing

or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set

forth in paragraph (24) of this section), or who intentionally provides material support or resources

to an international terrorist organization engaged in hostilities against the United States, knowing

that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a

military commission under this chapter may direct.”

b. Elements. The elements of this offense can be met either by meeting (i) all of the elements in A,

or (ii) all of the elements in B, or (iii) all of the elements in both A and B:

A. (1) The accused provided material support or resources to be used in preparation for, or

in carrying out, an act of terrorism (as set forth in paragraph (24));

(2) The accused knew or intended that the material support or resources were to be used for

those purposes; and

(3) The conduct took place in the context of and was associated with an hostilities.

B. (1) The accused provided material support or resources to an international terrorist

organization engaged in hostilities against the United States;

(2) The accused intended to provide such material support or resources to such an

international terrorist organization;

(3) The accused knew that such organization has engaged or engages in terrorism; and

(4) The conduct took place in the context of and was associated with hostilities.

c. Definition. “Material support or resources” means any property, tangible or intangible, or service,

including currency or monetary instruments or financial securities, financial services, lodging,

training, expert advice or assistance, safehouses, false documentation or identification,

communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or

more individuals who may be or include oneself), and transportation, except medicine or religious

materials.

d. Maximum punishment. Confinement for life.

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Welcome! Who am I?



Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.