Heller Responds to Stimson on Article 75
Kevin Jon Heller at Opinio Juris responds to Cully Stimson’s argument that Article 75 of Protocol I, if it applied to military commissions, might gut the relaxed hearsay rules in commissions. Article 75(4)(g) provides that “anyone charged with an offence shall have the right to examine, or have examined, the witnesses against hi
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Kevin Jon Heller at Opinio Juris responds to Cully Stimson’s argument that Article 75 of Protocol I, if it applied to military commissions, might gut the relaxed hearsay rules in commissions. Article 75(4)(g) provides that “anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf.” Heller argues, in a nutshell, that “Article 75(4)(g) only applies to witnesses who actually testify during trial; it does not apply to hearsay declarants, much less adopt the common law’s understanding of the right of confrontation.”
Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.