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.