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September 17, 2006


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Prof. Stone: Do you have any precedent that says the Bill of Rights applies to enemy combatants captured on a foreign battlefield? Did the Nazis at Nuremberg have the protection of the Bill of Rights?


As I said in my previous post, I agree that the Sixth Amendment trumps evidentiary rules (ala Crawford). (Although the distinction between testimonial and nontestimonial hearsay seems like a pretty hefty gloss on the Sixth Amendment intended to accomodate the rules of evidence.) In any event, I agree that our current rules of evidence must be read in light of Sixth Amendment precedent.

However, I think the question posed by the Bush proposal is whether the restrictions on hearsay found in the rules of evidence can be relaxed without running afoul of the Sixth Amendment, and the answer to that seems to be yes.

Another way to think of this would be to ask what would be wrong (either legally, constitutionally, or morally) with a rule making hearsay admissible except to the extent admitting such evidence would violate the Sixth Amendment. If you agree with Prof. Stone that the Sixth Amendment applies in military tribunals (and I would tend to agree that it does), then the Bush proposal is effectively the same as the hypothetical proposal above.


BAC, your proposal strikes me as nonsensical. You ask what would be wrong with admitting hearsay evidence that does not violate the Sixth Amendment. But the Confrontation Clause of the Sixth Amendment appears to obviate hearsay evidence. I realize that there has been a lot of song-and-dance around this in case law, but at the fundamental level, how can you reconcile the Confrontation Clause with hearsay evidence? Can we agree that the basic purport of the Sixth Amendment rules out hearsay evidence, but that there might be some special exceptions that do not violate the Sixth Amendment?

David, the Nuremburg trials were not carried out by the American government and so the Bill of Rights did not apply to them. As to the rights of enemy combatants, at the fundamental level, there is no question here. At no point does the Bill of Rights declare that "no citizen" may be deprived of rights; at every point, it says that "no person" may be deprived of rights. That's "person", as in "homo sapiens" -- anybody and everybody. Some have argued that, since the Constitution begins with the phrase "We the People of the United States of America", this restricts the Bill of Rights to American citizens. I consider this claim to be devious sophistry. The Bill of Rights is a negative document: it forbids the government to take certain actions. The actions are defined not in terms of their victims but in terms of the government. Therefore, enemy combatants should have all the rights that American citizens have. In practice, the courts have granted the Executive considerable leeway during time of war -- but then, this isn't a time of war, so none of those precedents apply here.


As to the administration complaints of vagueness with respect to Common Article III, the statutory proposal in the House that was being backed by the Administration (apparently a new one has been proposed but its terms not yet made public) provided for a "shocks the conscience" standard. Depending on whose conscience is the standard, there would appear to be some vagueness problems there as well. If it provided for Attorney General Gonzalez's conscience, no problem: anything goes.

Is it clear that dying declarations are admissible under Crawford?

Frederick Hamilton

You also engage in devious sophistry. You claim that "this isn't a time of war". Tell that to all the dead Taliban and dead Iraqi's and of course sadly our own soldiers killed in these non-wars. Sorry, but it is the ultimate legal sophistry to try and claim the Congressional vote for AUMF regarding terrorists and the seperate vote to go to war in Iraq were not actual "declarations of war". By your standards we have not had a war since World War II. Yours is a fringe argument akin to the income tax being unconstitutional. Nobody buys the argument. Least of all the combatants in these non-wars. They are legally wars. The Supreme Court, Congress, the Executive and the people treat them as wars. Those holding onto legal sophistry claim we aren't at war. Good luck, nobody buys that.

Frederick Hamilton

Oh and an afterthought. All legislation, insurance, VFW, rules regarding military service, ad infinitum regard these as wars. As does the EU and their soldiers in Afghanistan regarding the Taliban and the new Afghanistani government. No, we are indeed at war.


Mr. Hamilton, I agree that we are in substance at war. But we are talking about the Constitution here, and the Constitution is absolutely clear on this point: only Congress can declare war. Congress has had the opportunity to declare a state of war and has explicitly refused to do so. Its AUMF was explicitly NOT a declaration of war. It is not sophistry to take legal terminology at face value.

I therefore ask you if, according to the legal specifications in the Constitution, we are at this time in a state of war?

Grant Evans

I am wondering if someone can correct me, in case I am misunderstanding something. Didn't Hamdan rule that UCMJ and the Geneva Convention apply to these military commissions? The UCMJ specifically requires confrontation (I think in section 836) as a procedural right for those tried in military commissions. The Geneva Conventions require the procedural safeguards recognized by all "civilized nations" - which, I would think, includes the right of confrontation.

Our military actually has a very proud and very respected history of court martials under the UCMJ, which comply in all respects to the Geneva Conventions. I think the President does our military a disservice, and strips away the progressive reputation earned by almost two centuries of court martials, by not trusting the military's long-held procedural safeguards under the UCMJ and their history of compliance with the Geneva conventions and instead instituting these "secret commissions" and highly disconcerting CIA interrogations. It seems to me the path is made clear by the Supreme Court's decision in Hamdan. By all means, try enemy combatants suspected of war crimes by military commission, but the commission must comply with UCMJ and the Geneva Convention, and be subject to appellate review.

Kimball Corson

This thread is missing the point and misunderstands the framework of the discussion. The hearsay exception sought is intended to deal with secret evidence typically obtained by CIA agents engaged in torturing a prospect until he says what they want. The information and the source are to remain secret because other investigations may be based on it and because of the manner in which the information was obtained. The hearsay exception rule sought is to use the evidence but still have it, its source and the manner in which it was obtained kept a secret from the defendant and his counsel. The real situation for which the hearsay exception is sought is much worse than posited here.


I too am looking forward to Professor Stone's attack on Nuremberg, where, remember, the court was "not be bound by technical rules of evidence." In fact, the charter for the court provided that "It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value." Surely this sort of immorality can't be left unaddressed. (The rules of evidence for the war crimes tribunals in The Hague similarly admit evidence that Stone insists morality (and not simple American legal parochialism) would bar. That's without mentioning the constitutional infirmities--surely a court created by the power of the US can't avoid the strictures of the US constitution simply by involving another nation, especially on such an essential point as the basic rules of evidence. Next, Stone can discuss the right to trial by impartial jury as it relates to the experience at Nuremberg. As a good originalist--aren't we all now, Professor Stone?--Stone will surely have a long list of constitutional "innovations" to criticize.

It's always fascinating to watch the talented and successful lose their minds. It's not 9-0, Professor Stone, but it's getting close.


Grant, it's my understanding that the UN Yugoslav tribunals do not recognize a general right to confrontation in all circumstances. Are these trials in violation of the Geneva Conventions? Is there some ambiguity about what the Conventions require? Is there some sort of double-standard?


Thomas, I don't believe that you are being honest in your statement regarding the war crimes tribunals at The Hague. Anybody can read the Rules of Procedure and Evidence at this URL:


Rule 89C declares, "A Chamber may admit any relevant evidence which it deems to have probative value." However, there are a number of other rules that also apply on this matter, such as:

89D: "A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial."

89F: "A Chamber may receive the evidence of a witness orally, or, where the interests of justice allow, in written form."

90Hiii: "The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters."

Rule 92 presents six factors that weigh in favor of written submission of testimony rather than oral, and three factors against. One of the three factors against admitting written testimony is:

92Aii(b): "a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value;"

Most significant is this:

95: "No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings."

Taken together, these provisions surely deny the admission of evidence that Mr. Bush desires to admit into the military tribunals. As such, your suggestion that the war crime tribunals at The Hague do not provide the same level of protections as the US Constitution are false.

I'd also like to remind you that the war crimes tribunals (as well as the Nuremburg trials) use a blend of the inquisitorial system common in European law and the adversarial system used in Anglo-Saxon law. Note that the rules I cite do not have the strict technical precision required by American law. Your objection exploits these fundamental stylistic differences to insinuate a false lack of regard for fairness.

Again, any fair consideration of the rules of evidence used in these trials in their totality leads to the conclusion that the kinds of evidence that Mr. Bush wishes to admit would NOT be admissible in the war crimes tribunals.


A few things to say:

Thomas, your argument about the Hague tribunals, as well as the U.N. tribunals are off point. Our domestic courts have the constitutional right to interpret treaties entered into by the United States. They can (and should) take into account the decisions and practices of other countries, as well as our country´s past precedents, but in the end they have the ultimate responsibility of interpretation. They have already weighed in on this issue in Hamdan. Common Article III includes the right to confront the evidence, so long as the powers granted to the president include that he abide by the law of war.

What Stone has said, which you skip right over, is the fact that these are criminal proceedings. They are crimes against the United States, and hence the constitution provides basic protections.

Furthermore, you may have missed what Kimball wrote above. This is a double-whammy, in that Bush wants to first torture subjects, and then use what they say in subsequent criminal trials, without anyone being able to contradict it. Or at least that will be the case in some circumstances.

There have already been numerous innocent people released from Guantanamo, which illustrates how unreliable much of this information is. How much worse it will be when these people come to a trial in which there is little evidence put forward, and they are convicted. How on earth can you justify a conviction based on agreements back in some dark, smokey room where only the prosecutor and the judge are allowed, and the evidence that is presented is based on coerced confessions from ANOTHER PERSON? It´s nonsensical.

Furthermore, torture is both defined and prohibited by numberous, numerous treaties (not just the Geneva Convention) to which the United States is a party. There is no necessity to "redefine" these treaties because the information is both readily available and understandable. Bush wants to be Walker, Texas Ranger. He doesn´t want to "tie his interrogator´s hands," meaning, he wants to torture. It´s prohibited in abundance. We are better than the enemy...I hope.



It´s a fairly silly thing to say that someone is losing their mind when they are on the faculty of one of the best law schools in the country. It´s even sillier when what the person has said reiterates what has already been put forth by the Supreme Court. That´s a far cry from 9-0, my friend. In fact, you´re much closer to 9-0 than Stone is on this one.

Finally, I´m not sure what kind of perverse person would call it "fascinating" to watch someone lose their mind, regardless of the absurdity of the claim. It´s on par with people who like to watch animals suffer. Did you like to abuse your dog as a kid? Anyway, I certainly hope neither you, nor anyone close have to watch someone truly lose their mind. Not a pretty sight.


eras--I don't know what to make of your response, except to say that your attempt to salvage Stone's point undermines it even further. Stone, remember, pretends that morality requires the American system, which is fatuous. Your response--which is that other, very different systems are also fair--is a nice response, but not in accord with Stone. Your suggestion that other fair systems somehow would satisfy the sixth amendment seems just confused.

Curtis, your response is similarly confused. Stone doesn't say that Common Article 3 requires the right to confrontation (and in any event, it does not), but that the constitution requires it.

Your response also fails to differentiate the trials I mentioned--including the Nuremberg trials--from the proposed tribunals.

My reference to Stone's mindset meant to note that his partisanship grows increasingly fevered. A decade ago he was a proponent of a truly imperial presidency, a president who was above the laws, while now he offers equally transparent arguments the other way. Being on the faculty of the best law school in the country apparently offers no protection from that sort of thing.

Kimball Corson

Hamdan is easy to deal with. Bush proposes to have Congress redefine to his own satisfaction what is permissible under Article 3 of the Geneva Conventions, thereby attempting to overrule Hamdan and to then include in the legislation a provision withdrawing jurisdiction from the federal court system to review or pass upon matters arising under the new legislation, thereby precluding Supreme Court review. David Addington's agressive hand at work.


Thomas, your statement that "Stone, remember, pretends that morality requires the American system" is patently false. If you re-read Mr. Stone's post, it refers the concept of morality just once:

"Each of them is legally, constitutionally, and morally unwarranted."

The post goes on to examine the legal, constitutional, and historical aspects of the issue -- but it never develops the moral aspect. You are hanging your entire case on a false claim. I suggest that you abandon this line of attack.

You write, "Your suggestion that other fair systems somehow would satisfy the sixth amendment seems just confused." I believe that the confusion here arises from your misinterpretation of my statements. I wrote:

"Taken together, these provisions surely deny the admission of evidence that Mr. Bush desires to admit into the military tribunals. As such, your suggestion that the war crime tribunals at The Hague do not provide the same level of protections as the US Constitution are false."

This statement does NOT say that the rules of evidence in the war crimes tribunal satisfy the Sixth Amendment. It says that they provide the same level of protection. There's a difference here that you do not seem to appreciate; I suggest that this is the source of your confusion on this point.



Thanks for the argument that the Bill of Rights applies, but that's why I asked for precedent. Has any Court held that the Bill of Rights applies in this situation, or any like it?

Re Nuremberg--well, the prosecution was by a tribunal set up by the victors in WWII and, as Thomas us, the answer is that the Bill of Rights did not apply.

So do you think that the Bush Administration could circumvent the Bill of Rights (assuming that it is otherwise applicable to the detainees) by creating a joint tribunal with Great Britain to try detaines?



Common Article 3 doesn´t include the right of confrontation? Have you read the opinion? The plurality says it does. Scalia, Thomas and Alito say it doesn´t. Kennedy expressly says that he doesn´t find it necessary to consider the question at all. So, with Kennedy bowing out on the subject, that leaves the court 4-3 in favor of Common Article 3 applying the rule of confrontation (although only a plurality says that Common Article 3 itself applies in this situation).

Again, as to your point that Stone argues the Constitution requires confrontation, these are criminal proceedings. Hamdan applies again, because it is an example of how the President is taking normal, criminal activities, i.e. conspiracy, and tries to convert them into war crimes...5-3 against Bush. Hence, we´re still working within a normal criminal proceeding where the right to confrontation still applies, as per the constitution.

Bush has three options 1) try these prisoners as war criminals, 2) Keep them solely as prisoners of war, and release them at the end of the "war" or 3) try them as regular criminals.

As per 1, Hamden has made it fairly difficult. As per 2, the longer this "war" goes on, the more difficult that position is going to be to justify. 3 causes the nasty problem for the Bush administration in that people have rights that the Constitution prohibits the government from taking away. So, Bush has to pick his poison. Stone is clearly referring to the 3rd situation here, and it is clear that the constitution SHOULD apply.

Finally, regarding Stone´s mental faculties. 10 years ago, I was 15 years old. I was interested in video games, girls, and sports...not what Professor Stone was writing about. My guess, however, is that his switch (if that is actually the case) has something to do with the goals that each president had in mind, and whether or not those goals (along with the methods to implement them) were constitutionally sound. I have a feeling Prof. Stone could articulate the distinction.

Even so, the way you´ve put it in your response, along with your critical tone, makes it sound like you´ve made the same switch, except in the opposite direction.

Grant Evans


I do think that there is some ambiguity as to whether confrontation is required under the Geneva Convention in trials for war crimes. Iwould argue that the Convention's requirement that procedures used in such trials comply with those of "civilized nations" does require confrontation, but I do not think a procedural guarantee of confrontation is a prerequisite to being considered "civilized". There is room for debate.

However, Hamdan held that the UCMJ must apply to any military commissions used to try detainees in Guantanamo. The UCMJ expressly requires confrontation. I do not see any way around this without either amending the UCMJ or Congress expressly exempting these commissions from the UCMJ's requirements. Is that Bush's current agenda - to exempt these commissions from the UCMJ as a way around the Court's ruling in Hamdan? I understand that he is trying to nail down the ambiguity in the Geneva Conventions, but how is he planning on getting around the UCMJ?

I have no problem with the administration's detaining enemy combatants at Guantanamo as part of a war on terror (though I agree with Eras that normal "laws or war" seem unwieldy in the war on terror). But I do have a problem with the administration charging certain detainees with war crimes and trying and punishing them without complying with law. And I have an even bigger problem with torture (for reasons that should be obvious).

And I disagree with Congress exempting these commissions from the UCMJ. First, I think it undermines the reputation of our military, because the President demonstrates a lack of confidence in our military's competency to try these men under their long held procedural rules. Second, we undermine our own credibility as partners in building democracies in Iraq and Afghanistan, when we do not adhere to our own legal principles in trying detainees for war crimes.

I agree with Professor Stone. There is a difference between, on the one hand, making the determination that a captured soldier is an "enemy combatant" and holding that soldier as a POW to prevent him from reentering the battlefield, and, on the other hand, trying that same POW for war crimes. That is a criminal prosecution no matter how you slice it, and we should set an example of respect for the law and individual rights by granting these detainees the same, or substantially similar, procedural protections as those afforded to any criminal defendant prosecuted for war crimes by the U.S. military. It is easy to dismiss this by painting all detainees with the "terrorist" brush, and then say that such men do not deserve such protections, but it only takes one situation, like this unfortunate man from Canada, to remind us that some of these men are innocent of any crime.


David, the Constitution is not fickle; it declares itself the supreme law of the land and therefore applies to all situations. No law may contravene the Constitution. We don't need a court precedent to determine whether the Constitution applies to any act of government; its universal applicability is fundamental to our system of government.

You raise a good point about the applicability of the Constitution to joint tribunals. I don't know the relevant law here. If the government were in original custody of the accused, then I would expect extradition law to apply, because in effect the government would be extraditing the accused to a foreign jurisdiction. The crucial question then becomes, can the accused block extradition by arguing that his rights would be violated in the foreign court? I believe that this argument can be made only in extreme cases, but I don't know the relevant law. Can anybody provide an answer?

Kimball Corson

Curtisstrong has his hands around the problem and writes, "We are better than the enemy [in regard to what we are proposing to do]...I hope."

I respond: I think not. We will be worse because we know better and our heritage so informs us, and therefore we proceed by deceit and wilfully in violation of these things, whereas our enemy proceeds by butchery within its own heritage and does so without deceit and in the name of its own God, as has been customary.

Kimball Corson

The New York Times now reports that --

Both the legislation introduced on behalf of the administration and the competing bill sponsored by a group of largely Republican opponents in the Senate include a provision that would bar foreigners held abroad from using the federal trial courts for challenges to detention known as habeas corpus lawsuits. If the provision was enacted, it would mean that all of the lawsuits brought in federal court by about 430 detainees at Guantánamo Bay, Cuba, would be wiped from the books

Kimball Corson

It also means you could sit in a foreign U.S. jail forever without being charged, especially if the evidence against you is zip and prosecutors know that and don't want to lose their case against you, prefering instead to prosecute those cases for which they have good or at least some evidence where they might win. This, of course, is all after you have been tortured, but have no information to give up because you are innocent of all charges known or unknown to you. The CIA gets to decide whether you have habeas corpus rights when it decides whether to incarcerate you in the US or on foreign soil. If they have no information and therefore decide to torture you, the likelihood is you will be taken abroad for your torture and then likely jailed abroad too. The system is stacked against the innocent. Both proposed bills in Congress are terrible, one only only slightly less so than the other, but equally bad in the regards I discuss here.


Mr. Corson, I have long been troubled by this aspect of Congressional power to intrude into the Bill of Rights. Congress could decide that nobody can bring a habeus corpus action in federal court under any circumstances, thus eliminating once and for all habeus corpus rights. I can see no legal difference between Congress eliminating foreign soil rights to habeus corpus and domestic rights to habeus corpus. Wouldn't we expect the courts to overturn any such restrictions?

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