Bush's Proposed Military Tribunals: Beyond the Pale

A good deal has been made in recent days of the objections raised by Senators Lindsey Graham, John McCain, Olympia Snowe, and John Warner to President Bush's proposed legislation authorizing the use of military tribunals to try enemy combatants. I applaud the actions of Graham, McCain, Snowe, and Warner. What I find astonishing -- and deeply distressing -- is that other Senate Republicans have not rallied to their support. 

Senators Graham, McCain, Snowe, and Warner have objected to several provisions of the Bush proposal, including  those expressly authorizing the prosecution to use hearsay evidence, secret evidence, and evidence obtained by coercion involving degrading and inhuman treatment. Each of these proposals represents a profound and radical departure from the fundamental standards of fairness and decency that have long governed both criminal courts and military tribunals throughout the history of the United States. Each of them is legally, constitutionally, and morally unwarranted.

I will focus on what to most people probably probably seems the least shocking and most technical of these provisions -- the one governing the use of hearsay evidence. The logic of the objections to the provisions authorizing the use of secret evidence and evidence obtained by coercion involving degrading and inhuman treatment is self-evident and hardly requires explanation. What does require explanation is how the leaders of the executive branch -- and especially lawyers in the executive branch, could possibly believe them to be lawful. At least the hearsay provision arguably involves some measure of subtlety.

We don't know precisely what type of hearsay evidence the Bush administration intends to use against criminal defendants in these proceedings, but certainly the proposal is designed to authorize the government's use of ex parte statements made by captured enemy combatants during the course of their interrogation. For example, if X was seized in Afghanistan, transferred to Guantanamo, and interrogated by military officials, he may have made statements implicating Y in a terrorist act. Ordinarily, we would expect the government to call X as a witness to Y's trial, so X could testify under oath, before the jury, subject to cross-examination by Y's counsel. The Bush proposal, however,  would allow the government to introduce X's hearsay statement against Y, instead of requiring the government to call Y as a witness.

The use of such evidence against a criminal defendant is prohibited by the federal rules of evidence and the rules of evidence of all 50 states. But the Bush proposal would authorize the government to use these statements against a defendant in its newly-designed military tribunals unless the judge finds the evidence "unreliable." Now, at first blush that doesn't seem so radical. After all, why not use such hearsay evidence against a criminal defendant if the judge finds that it is not "unreliable"? That sounds reasonable. In fact, however, this approach is neither reasonable nor constitutional. To the contrary, it would sweep aside the defendant's essential right of cross-examination, which was described more than a century ago by Professor John H. Wigmore as "the greatest legal engine ever invented for the discovery of truth."

The Sixth Amendment to the United States Constitution provides that in "all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Kirby v. United States, 174 U.S. 47 (1899), the Supreme Court described the right of confrontation as one of our nation's most "fundamental guarantees of life and liberty." Moreover, only two years ago, in an opinion by Justice Antonin Scalia in Crawford v. Washington, 541 U.S. 36 (2004), the Court observed that "the right to confront one's accusers . . . dates back to Roman times."  Justice Scalia explained that "the principal evil" at which the confrontation guarantee was directed was the "use of ex parte examinations as evidence against the accused." He added that the Framers of the Sixth Amendment clearly intended to forbid the admission against a criminal defendant of any such statement "of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."

Justice Scalia recalled that one of the "most notorious" instances of procedural abuse, one with which the Framers were intimately familiar, occurred in the 1603 trial of Sir Walter Raleigh for treason. Scalia described the incident as follows: "Lord Cobham, Raleigh's alleged accomplice, had implicated him in an examination before the Privy Council. . . . At Raleigh's trial, [Cobham's statement was] read to the jury. Raleigh argued that Cobham had lied to save himself. . . . Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing . . . 'Call my accuser before my face.' The judges refused and, despite Raleigh’s protestations that he was being tried 'by the Spanish Inquisition,' the jury convicted, and Raleigh was sentenced to death. One of Raleigh’s trial judges later lamented that ‘the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.’” These, I remind you, are the words of Justice Scalia.

Similar views prevailed in the American colonies. John Adams declared that Englishmen and Americans have an "aborrence" of the use of ex parte statements;  Abraham Holmes of Massachusetts compared prosecutions based on ex parte statements of witnesses who are not subject to cross-examination to "the Inquisition"; and a prominent Antifederalist warned that such evidence "seldom leads to the proper discovery of truth."

In the light of this history, the Court held in Crawford that the United States Constitution forbids the government to use against a criminal defendant any testimonial hearsay statement of a witness, unless the government proves that (1) the witness is unavailable to testify in person and (2) the defendant had had an adequate opportunity to cross-examine the witness at a prior proceeding. The Court held that unless those two conditions are met, the use of such evidence violates the Sixth Amendment.

What, though, of the possibility that such evidence might not be "unreliable," even though the witness is not present at trial and the defendant has never had an opportunity to cross-examine him? Surely, as the Bush proposal suggests, evidence that is not "unreliable" should be admissible. Justice Scalia unequivocally rejected this reasoning: "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of . . .amorphous notions of reliability. . . . Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."

The Bush administration's call for an abandonment of the Sixth Amendment, and its even more egregious insistence on using secret evidence and evidence obtained by coercion involving degrading and inhuman treatment, should be unequivocally rejected by Congress. Of course, these rights will make it more difficult for the administration to convict these individuals. So, too, will the inconvenience of a trial.

Comments

[Kimball Corson]

I too see no difference between foreign soil rights and domestic rights if the US is itself prosecuting in its own tribunals, especially if the Government gets to decide where you are to be held and tried. Problem is Article III courts (federal courts) have jurisdiction at the pleasure of Congress. (Article II Sec 1: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.) However, I agree with you that the Court should retain jurisdiction, notwithstanding, where Congress acts to blatently violate the Constitution. (Article II Sec 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution . . .). But this would be a fight, for sure. Would Congress retaliate by eleiminating the federal district and appellate courts, as is its right? There are already a few nuts in Congres who think this should be done. One bad aspect of terrorism is that our governmental institutions are being pressed to their limits. It would be nice not to have to face these quesions.

[Kimball Corson]

All reference in what I just wrote should be to Article III.

[Bob]

Who's gonna hold Bush and his administration accountable if the world court or the UN find that they broke Geneva Convention rules? Nobody, cuzz we'er the biggest bully in the sandbox. The UN and the world court is a pawn of the USA; they're a joke.

[Kimball Corson]

Bush can be and is a run away freight train and wholly unaccountable because of his political support. Imagine, he took an oath to uphold the Constitution. Clinton goes thru an impeachment process because he lacked enough political support and fibbed about a blow job, but Bush will walk away without a hitch. Amazing how strained and broken the system is.

[Bob]

It's been broken since Lincoln trashed it.

[LAK]

Hey Bob, let's not trash Lincoln in the land of, mmmkay? Lincoln did what he had to do, Bush did what he wanted to do.

[Bob]

Lincoln did what he wanted to do. It had nothing to do with what he had to do. He created that mess by taxing southern farmers exports in order to force them to sell their tobacco and cotton to the northern industries at lower prices than they could get from England. So, don't tell me that Lincoln had to do it. He owed his northern industrialist constituents for financing his election.

[Kimball Corson]

Habeus corpus has been bushwacked in the desert. But Lincoln, on the other hand, had a real mess on his hands: the North was truly jealous of the South and simply would not let matters be.

[Kimball Corson]

Habeas, that is.

[Bob]

As I said before, Lincoln created the mess by allowing those tax bills to be passed. Then he used slavery as the rallying cry to drum up citizen support and an army to force the southern states to comply.

[LAK]

Imagine that. Taxing exports for te benefit of domestic commerce. The horror. If only slavery still existed costs would be so much lower too and the economy that much healthier. Damn you Lincoln! Damn you!

[Kimball Corson]

Why it sounds just like an export tarrif. And Southerns would still be sippin' mint julips on big verandas at sunset instead of shovelin' muck or building roads, like those up north.

[Bob]

You both miss the point.

[Kimball Corson]

No, we got it but just moved on to make jest. Too, once those fancy Southerners got their comeuppance and things settled down, the right of habeas corpus returned in good time, but cotton production dropped and costs rose so England and the North had to pay higher prices, not the lower ones Northerners were supposedly after. Jealously, I say, pure jealously was what the war was really about.

[Bob]

Sarcasm is hard to write well, and hard to detect. You may have been making a jest, but I'm not sure about LAK. Let him answer as well.

[Frederick Hamilton]

You guys might just want to look at the last post of "Not a Suicide Pact Round Two" to see the response of Senators Warner, McCain and Graham and then you might understand the habeus aspect of MCA. Doubt it will change your minds, but it is good to read what the bill really says about habeus.

[Frederick Hamilton]

Reported today about Gitmo detainees and the rights of enemy combatants per the MCA.

"every detainee held by the military goes before a Combatant Status Review Tribunal--an Article 5 hearing in the Geneva Convention's parlance--and under the Military Commissions Act the decisions of these tribunals are subject to judicial review by the U.S. Court of Appeals for the D.C. Circuit.

Currently, that means every detainee held; Khalid Sheikh Mohammad and the other 13 new arrivals at Guantanamo Bay will receive Article 5 hearings in the next few months."

[Bob]

But we still get to torture them first...I mean to say, humanely extract useless information from them as per the new interrogation laws, which, of course, does not condone, nor allow, inhumane torture. Only humane torture is allowed, I mean, information extraction techniques that are approved, you know, the ones that don't leave marks...like submersion. It's not physical torture, it's only mental torture, so, it really isn't even torture.

[bruce macmillan]

As a foreign (LLM)student from South Africa I would like to comment on some of the above postings.
UN Bill of Rights came in 1948, near the end of the the Nuremburg Trails, so was not then a factor, and posts relating are not relevant.
SA moved from an Aparteid Parliamentary system, where the ruling government party made the law, to now, a Constitutional State where the Constitution is the Supreme Law. It included a Bill of (Human) Rights that "trumps" any situation where law is "difficult". ie Human rights supercede other rights.
A Democracy is the will of the majority with protection of minorities , especially individuals. Protection against detention without trial. Right to a speedy trail. Right to a fair trail. Right NOT to be tortured. In fact most of our Constitution was based on the US Constitution, but I think we are able to see past the paranoic fear gripping America.
As far as the posting on extradiction. This is by treaties between countries. We in SA review extradition to US on all requests except where person will be tried for death penalty as the Death penalty, since abolished in SA. If the extradition application is changed to life imprisonment then application is considered.
In criminal prosecutions, onus is always on the state to prove guilt beyond all reasonable doubt. Under the Laws of evidence, heresay evidence must be critically viewed especially from members of Military Intelligence, CIA and other "unbiases" parties. This posting may sound ironic from someone in Africa where torture, abuse of human rights, detention without trail, is almost expected. It would take less than 72 hrs of waterboarding, electric shock , sleep deprivation to get confessions from Mother Thesesa confessing to being MattaHari, or the Pope to being Charlie Manson. And then for a "special military tribunal" to use this evidence in a secret trial where accused is not allowed representation. Huh. Home of the Brave and Land of the Free.

[Erasmussimo]

Indeed. American is increasingly being put to shame by third world countries. At the same time that we had our electoral debacle in Florida in 2000, some small sub-Saharan nation (whose name I forget) had an intensely competitive election that was executed with remarkable fairness. Ballot boxes were made of plexiglas so that everybody could see that they were empty at the outset. In one case where there was a dispute, the police had the election workers move their tables outside so that everybody could watch as the ballots were counted. It was a model of pure democracy, an example to inspire -- and a gross indictment of the flaws in the American system.

And now they're starting to show us up on human rights and constitutional protections. I wonder when Americans will begin to feel shame for the shoddy subversion of their Constitution.