• Evidence gathered during military operations often will not comply with American law enforcement standards. But such evidence often is highly probative of guilt.

• Information gathered by intelligence professionals often is highly probative of guilt, but disclosing how we found it, where we found it, or with whose help could harm our nation's ability to obtain such information again.

• Statements gathered in military and intelligence operations often do not and cannot comply with contemporary Fifth Amendment judicial interpretations, especially the Miranda rules. But they still may be reliable, and therefore highly probative of guilt.

• Foreign partners can provide tremendous cooperation in obtaining valuable evidence of terrorist activities - but disclosing that cooperation directly, in a public trial, could jeopardize such cooperation in the future.

• Independent defense counsel, trial judges and a credible and robust appellate process are critical to the truth-seeking function of any criminal forum.

• Military commissions are a long-validated, Constitutional process for adjudicating war crimes, employed not only by George Washington, but in an enlightened manner by Winfield Scott in the Mexican War, and several other well respected leaders in other conflicts, including by President Roosevelt during World War II.

• The Constitution does not apply in all respects to non-citizen unlawful combatants whose primary or sole connection to the United States was in launching terrorist attacks against it.

The current military commissions are often misunderstood and mischaracterized, sometimes in good faith, sometimes out of ignorance, and sometimes as a straw man to highlight critics' disagreements with the past administration. Some facts might not be widely known:

• 17 individuals currently face charges by military commissions.

• There were proceedings in numerous cases in the past year, including two contested cases and many highly contested hearings on complex questions of Constitutional law, the law of war, and statutory interpretation.

• The government has provided hundreds of thousands of pages of discovery (government evidence) to the defense and facilitated the declassification of tens of thousands of government documents.

• The government has funded many tens of thousands of dollars of defense-requested experts.

• Commissions procedures include protections that most Americans would expect in most any criminal trial, because they are fundamental to a valid truth-seeking process and reflect Americans' devotion to due process. Among them:
-- Presumption of innocence and proof beyond a reasonable doubt.
-- The right to evidence in advance - discovery obligations that most agree are more liberal than in federal courts. Access to government-funded translators, consultants, and experts to assist in preparing a defense.
-- Independent trial judges, independent defense counsel, and the right to employ civilian counsel - an opportunity seized by many accused, several of whom enjoyed the support of multiple lawyers from high-powered firms and interest groups.
-- The right to confront all evidence and witnesses and to call own witnesses.
-- Capital sentences require the government to plead and prove aggravating factors and obtain unanimous votes, as in civilian and military courts.
-- Appellate process through traditional federal courts up to the Supreme Court. Some critics lately have suggested the process has taken a long time - true enough, though in part because of the openness of our federal courts, which stalled commissions cases from 2003-2007.
-- A process similar to the Classified Information Procedures Act, which is employed regularly in federal court.

That said, the process is not identical to federal court or courts-martial, and the places where they differ are grounded in good reasons:

• Hearsay. Hearsay is used every day in every court in America. Liberalized hearsay, making commissions cases more akin to the more familiar International Tribunals and European courts in this regard, recognizes the reality that sometimes we cannot locate witnesses or validate evidence the way we can in crimes occurring in the U.S. and investigated by conventional law enforcement officials. These rules are available to both sides, have been used by both in several proceedings, and are often the subject of appropriately vigorous argument in court.

• Chain of custody. Soldiers in the midst of combat operations don't use warrants and they don't issue receipts. A hard drive found in a cave, a forged passport from a terrorist guest house, or a fingerprint on a terrorist training camp graduation certificate (yes, there really are such documents) can be compelling pieces of proof. They should not be barred from evidence because the evidentiary chain does not have the same rigor as an FBI bank robbery investigation. In commissions practice, as in federal court, the parties may contest the chain of custody, and in the end juries will decide whether to trust it. However, a less-pristine chain of custody should not, by itself, foreclose the admissibility of such evidence.

• Self-incrimination. There is absolute protection against self-incrimination at trial - no one can ever be forced to testify against himself. Before charging, however, U.S. authorities may continue to approach a detainee - though in practice it normally amounts simply to an invitation to talk. Torture is a red herring. We can't and won't use statements derived from torture. The law does not allow it and our wise and ethical prosecutors would not countenance it.

There has been much discussion about changes to commissions rules and procedures, and we owe our advice about the process and our cases to the Administration we serve and not yet to the public. Any system, including this one, can be improved. Many critics acknowledge that there is a need for a court with evidentiary flexibility that accommodates national security while trying dangerous, stateless terrorists in a manner consistent with justice. They call them "national security courts." They already exist. We call them military commissions.

Colonel Lawrence J. Morris, Chief Prosecutor, Office of Military Commissions, is a career judge advocate, who most recently served as the Army's Chief Public Defender. The views expressed here are his alone.