The Wall Street Journal reports that the revamped tribunal procedures were developed in part by US military lawyers in response to the Military Commissions Act of 2006, but were rejected at the time by the Bush administration. The new procedures feature a ban of evidence acquired from "cruel, inhuman or degrading" interrogations and a streamlined process for detainees to replace their assigned lawyers, but most of the changes "involve the use of hearsay evidence – that is, statements introduced without giving the defendant a chance to cross-examine the witness."
Although hearsay generally is barred in American courts, Guantanamo prosecutors say that at least 90% of the evidence against detainees consists of statements that either they or other prisoners have made under interrogation.
When regular courts do admit hearsay statements, the party introducing the statement generally must demonstrate its reliability. The Bush administration shifted that burden for military commissions, effectively meaning the defendant would have to show why a hearsay statement against him was unreliable. The Obama rule changes are expected to revert to the traditional formula.
In the event a detainee sought to admit his own statements taken through interrogation, Bush rules required military judges to warn jurors that the defendant was avoiding cross-examination. The new rules are expected to delete that requirement. Like civilian courts, the military commission won't be permitted to draw an adverse inference from a defendant's refusal to testify, officials said.