Heller Responds to Stimson on Article 75

By Jack Goldsmith
Sunday, March 13, 2011, 9:33 AM

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.”