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

[Erasmussimo]

Thanks for the detailed analysis. It is a sorry state of affairs when so many members of our government fail to grasp the most essential concepts of the Constitution. The Sixth Amendment is clear and simple in its meaning; it doesn't take years of training to appreciate its import. And yet here we have an Administration bent on trashing the Sixth Amendment, and a great many Senators who give political loyalty higher priority than the Constitution.

I would hope that all true patriots would join in defending the Constitution against this assault.

[Nom]

How does the Confrontation Clause apply here at all? It explicitly applies only to "criminal prosecutions," which does not encompass military tribunals (which are not a newfangled Bush invention), just as it does not apply in civil proceedings.
Just like the same Sixth amendment, which mandates speedy trials (as Hamdan clarified, the detainees can be held indefinitely, as they have been in all periods of hostilities) and juries of their peers (from the home country of the terrorists? Right.) does not apply ever outside the U.S. The Sixth Amendment provision that "trial, by an impartial jury of the State and district wherein the crime shall have been committed" clearly could never apply to the detainees, because we don't have federal courts outside the U.S. where the crimes were committed. The Confrontation Clause is of the same applicability.

What next, a demand that a jury travel with every U.S. soldier to make an immediate determination of guilt or innocence of a potential target on the battlefield because otherwise someone is being "executed" without due process? Search warrants required before Marines bust into homes in Baghdad?

Sheesh.

I think an answer from Professor Stone is warranted as to whether he really believes the Sixth Amendment really applies here, or if he is just arguing a policy point based on analogy. There is zero support for the former proposition.

[Erasmussimo]

We need some precision in applying our arguments here. It's true that military tribunals do not fall under the regular Constitutional provisions -- but we must also remember that military tribunals exist to discipline members of the US military, not civilians, American or foreign (except where martial law has been declared).

At this point, the common argument is that military tribunals can be used against enemy combatants in time of war. The problem with this argument is that this is NOT a time of war. For this to be a time of war, Congress must declare war. Congress has not declared war, and the AUMF is not legally equivalent to a declaration of war, because Congress had the option to declare war and did not do so. So if we want to be rigorous here, there exists no legal state of war, and therefore military tribunals cannot be used on persons who are not members of the US military.

I concede that this argument is a tad technical; we can all recognize that the situation is messy and the application of conventional criminal law seems inapropos here. What we need is a broad approach to the legal problems arising from the war on terror, not a hodgepodge of ad-hoc laws. War is a short, intense period, with a clearly and legally defined beginning and ending, during which we accept some expansion of Presidential power. I believe that the current war on terror has already lasted longer than any other declared war in American history, and has no forseeable end. Therefore, we cannot and must not blithely apply the legal conventions used during a state of war to the current situation.

Inasmuch as we expect the war on terror to continue indefinitely, we need to develop an entire new body of law to deal with behavior that is more serious than crime yet less serious than war. But the undeniable fact remains that we are NOT in a state of war and therefore we cannot logically bring to bear arguments based on the laws of war.

[anon]

"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."

is the second Y a typo for X?

[Kimball Corson]

Your title, Geof, says it all. This Administration is just shocking. Too, someone here needs to address Bush's proposed breaches of Article 3 of the Geneva Conventions for CIA agents, if not the military, so, as Bush most deceitfully puts it, the line not to cross can be precisely clear to CIA agents and they will not be held liable. He wants CYA for guys pulling prisoners' eyeballs out. Give me a break. . . -- all for our national security, of course, the election year boogie man.

[Kimball Corson]

I believe, by the authority Geof cites, he has made the case for application of the Sixth Amendment, based on the policies underlying it. Too, those who violate the Geneva Conventions, as al Queda members proudly do, are certainly "criminal" in the clearest sense of the word. Also, we need to remain at the moral vangard and not join black boot third world nations in our approach to human life and war. We are loosing moral authority abroad very quickly and with it many of our friends and much support. It is stupid and shortsighted.

[Kimball Corson]

Too much of conservative America that backs Bush in wanting the CIA to be able to use torture in violation of Article 3 of the Geneva Conventions and the military to be able to use unfair tribunals, is not only mean spirited, it is just plain mean, and the rest of the world is coming to realize that from what I see, living outside of the coutry and traveling a lot.

[BAC]

Shocker -- Prof. "Chicken Little" Stone thinks the sky is falling . . . again.

The hearsay rule that Prof. Stone portrays as immutable is in fact very porous. Most relevantly, the residual exception under Fed. R. Evid. 807 allows for the admission of hearsay based on "circumstantial guarantees of trustworthiness." Far from decimating the Sixth Amendment -- or any other legal, constitutional, or moral standard -- the Bush proposal is a relatively minor expansion of a court's already expansive powers to admit hearsay evidence.

My guess is that a court would admit the same evidence under the current hearsay exceptions in the Federal Rules as under the broader exception proposed by Bush. I understand there is no way to test my guess, but a clever judge can use the hearsay exceptions in the Federal Rules to accomodate essentially any evidence.

So why are we arguing about hearsay exceptions if under either set of rules we expect that the court will consider any important and reliable evidence? I think the answer is politics. We are arguing over marginal provisions in the Bush proposal because a group of Republicans (some with presidential aspirations) wants to mug for the cameras, appear like mavericks, and generate donations that lead to votes. Nothing wrong with that -- but let's not be fooled into think that this is a serious discussion about the meaning of the Sixth Amendment.

[Geof Stone]

1. Why wouldn't the 6th Amendment apply to military tribunals insofar as they are engaged in criminal prosecutions? Remember, we are talking here not about hearings to determine whether enemy combatants can be detained during the course of combat, but real criminal prosecutions to punish individuals for committing real crimes. Perhaps I'm wrong, but I've never heard the argument that the 6th Amendment doesn't apply to criminal prosecutions merely because they're conducted by a military tribunal rather than a civil court.
2. Yes, mea culpa on the typo. I confused my X's and Y's.

[Erasmussimo]

BAC, I want to jump all over your final paragraph. Impugning the motives of those with whom you disagree is a cheap, dirty, debate stunt. Moreover, your claim that we are arguing this point because of the political aspirations of some politicians is patently false. Mr. Stone is not a politician and has no political aspirations, and none of the participants in this discussion are politicians with political aspirations. We are discussing it because we consider it a serious Constitutional issue. I request that you confine your comments to the substance of the issue, not sling mud at those with whom you disagree.

[BAC]

Erasmussimo,if you want to jump all over the conclusion, you should say something that attacks the premise.

If this is intended to be a serious discussion of the constitutional issues related to the Bush proposal, then why not mention the expansive exceptions to the hearsay rules that exist in the Federal Rules? You can't simply say hearsay is sacrosanct, and anything that creates an exception to it is unconstitutional, because that hugely oversimplifies the issues to the point of avoiding them.

My premise was a simple one . . . how would trials be different under a "unreliability" carve out to a rule generally admitting hearsay than under a "trustworthiness" carve in to a rule generally excluding hearsay? I think they would look almost the same, particularly when you consider that the judge is going to work hard to get the key facts in evidence (or, for that matter, the bad facts out of evidence).

[Geof Stone]

The catch-all hearsay exceptions are made explicitly contingent on the Confrontation Clause. Hence, to apply them in the situations I've addressed would both be unconstitutional and, by definition, beyond the scope of the provisions. They add nothing to the discussion.

[LAK]

Hearsay exceptions only apply when you can't get it from the horses mouth to start with. None of them apply if you could confront the witness, right?

[BAC]

Prof. Stone, not sure I understand why the hearsay exceptions add nothing to the discussion. I understand that the Confrontation Clause trumps the Federal Rules, but some of the hearsay exceptions (such as dying declarations) are found to be constitutional even though they seemingly allow testimony where the declarant has never been and never will be cross examined. In this sense, the hearsay exceptions give some sense to the contours of the Confrontation Clause, and can be helpful in deciding just how much of a constitutional stretch the Bush proposal is.

LAK -- there are any number of hearsay exceptions that can apply even when the witnesses is available to testify.

[Erasmussimo]

BAC, I believe you misunderstand my point. I was not attacking your conclusion; I was attacking the final paragraph of that posting, in which you impugned the motives of those with whom you disagree.

I think that the key distinction here arises from the difference between admitting hearsay evidence when the witness cannot possibly be confronted, and admitting hearsay evidence when the witness is held by the government but the government refuses to make the witness available. Can we agree that the former situation can reasonably fall within the limitations of the Sixth Amendment, while the latter cannot?

[Geof Stone]

Re the hearsay exceptions and Confrontation: In Crawford, the Court, per Scalia, held that "testimonial" hearsay can never be used against a criminal defendant unless the hearsay declarant (a) is unavailable and (b) was subject to cross-examination by the defendant at a prior proceeding. Dying declarations are not (necessarily) covered by Crawford because they are not testimonial in nature. Police (and presumably military) interrogations are testimonial within the meaning of Crawford. Hence, they can never be used in a criminal proceeding against the accused unless the two Crawford requirements are met.

[Kimball Corson]

BAC,

Do you have a problem with secret evidence and the idea "We cannot tell you what you did wrong, but trust us, it was bad. and you should die."

I believe the hearsay exception sought is largely designed to address the secret evidence problem, the intended abrogation the confrontation clause and to keep informants and information sources secret. The discussion here is largely irrelevant for this reason.

[Kimball Corson]

It goes without saying, from the vantage point I identify as well, the Bush proposal is, as Geof puts it, beyond the pale. For the Administration, results, not laws, matter, yet the results of so many of the Administration's efforts have been quite dismal. A bit ironic, I think, but irony is lost on the political right in America these days. I think they are too terrorized and manipulable to see things very clearly.

[Kimball Corson]

BAC has it precisely backwards.

It is the American right that, like Chicken Little, thinks the sky is falling and that drastic remedies are needed to save us all.

Those less spooked are the ones saying slow down and let us consider the problems with those remedies and what the alternatives are.

[Kimball Corson]

The Canadian Government has just issued an high level investigative Report into the case of Maher Arar, a Canadian computer engineer whom the United States suspected of being an al Queda operative. Based on false information, the American Government obtained custody of Mr. Arar from Canada and the CIA shipped him to Syria where he was beaten with a cable by agents to confess and tell what he knew. Later both Governments learned Mr. Arar was innocent. American officials had misled Canadian authorities about their intentions for Mr. Arar.

“I am able to say categorically that there is no evidence to indicate that Mr. Arar has committed any offense . . .,” Justice Dennis R. O’Connor, head of the investigative commission, said at a news conference. . .The American authorities who handled Mr. Arar’s case treated Mr. Arar in a most regrettable fashion,” Justice O’Connor wrote in a three-volume report, not all of which was made public. “They removed him to Syria against his wishes and in the face of statements that he would be tortured if sent there. Moreover, they dealt with Canadian officials involved with Mr. Arar’s case in a less than forthcoming manner.”

This how the American Government obtains its secret evidence for which it wants a new hearsay exception and breach of the confrontation clause.

This Administration is a walking disaster.

[curtisstrong]

Okay,

I´ve finally got a minute to write a bit here. Stone is right. But what I find unbelievably unacceptable is that the Hamdan court found that the Geneva Conventions apply to this situation so long as the statute says that the U.S. government must abide by the "law of war". This included Common Article 3 of the Geneva Conventions, which, in turn includes the right to confront evidence used against them. In fact, in it´s final footnote, the court points out that the government failed to come up with even ONE SINGLE EXAMPLE of when it would be a "fair" trial without allowing this refutation of evidence to occur.

Now, the President wants to reinterpret that same Common Article 3, under the law of war, somehow as ALLOWING that very thing to happen. From my understanding, the executive branch wants a bill that completely undermines these basic rights of a fair trial afforded by Common Article 3 (as interpreted by the SCOTUS), and yet by name acknowledges that we abide by that very same treaty. It´s preposterous.

As Prof. Stone wrote above, these are CRIMINAL proceedings. The government has to make a decision in the prosecution of these people: 1) give them access to the information, so that they can defend themselves, OR 2) drop the charges. No criminal court in our country would allow anything different.

On a seperate note, but a related one, I left an entry on the ACLU v. NSA blog that I think is also semi-applicable here. President Bush has said that if the law is not changed (presumably in accordance only with his own personal preferances), then this "program" of getting information regarding terrorism could not "go forward." The implication is that the Geneva Conventions are so vague and amiguous that no one knows what they mean. Perhaps there is some element of ambiguity in the texts. Nevertheless, it seems incredible to me that the President of the United States of America, with more lawyers at his disposal than is imagineable, could not READ the international and domestic interpretations of these conventions, and come up with a workable basis upon which to instruct these "professionals" who are involved in this type of work. It sounds to me like a little child who doesn´t get exactly what he wants, and then throws his arms up in the air, cries, and blames someone else.

First, if we grant the premise that our president has thrust upon us that we are in constant danger every minute of our lives, WHY WOULD HE DISCONTINUE AN INTERROGATION PROGRAM THAT COULD SAVE AMERICAN´S LIVES?

His stated reasons are that he doesn´t want to put those (again) "professionals" at risk of international prosecution of war crimes. I can´t even fathom the amount of contradictions and problems that this argument raises.

First, these people are NEVER going to be prosecuted by any international tribunal. This is acknowledged by Bush in his latest interviews. But he doesn´t want to "ask" them to break the law, because they won´t do it. What does he think he´s been doing this entire time?

Second, he puts the lives of those interrogators above the lives of American citizens. Or, in other words, he will risk a terrorist attack (rather than ATTEMPT to come up with a coherent game plan) rather than place the interrogators at an implausible risk of international prosecution. This is our president who vowed to do everything he could to protect America.

Third, if the "program" could, under any rational basis, be discontinued, what does that actually say about the status of our war on terror? Is it all a farse to begin with? Is the program actually necessary? If it isn´t, then certainly the horrible side effects of the program are not warranted either...i.e. torture.

We know that Bush goes to the mat to allow torture, and in the absence of a specific law from Congress allowing this torture to occur, he throws up his arms and declares the program impossible. If there´s a will, there´s a way. One can only conclude that this program is not as necessary as previously thought, and as a result, that President Bush is fighting for the ability to torture exclusively for torture´s sake. This is unacceptable.

[anonymous]

"Beyond the Pale"? Might want to watch the terminology prof. This term is considered by many to be an anti-Irish slur, referring to anything that was not within the English Pale of Ireland, or, in other words, catholic Ireland. I stopped reading after the headline.

[Kimball Corson]

Go to google.com, type in the search word "failure" and check out the first entry there before Google is compelled to change or fix it.

[Erasmussimo]

Anonymous, I have to intervene in Mr. Stone's defense regarding the term "beyond the pale". You are wrong to claim that "many" people consider this term an anti-Irish slur. Few people even know of its history and fewer consider it anti-Irish.

Its current meaning has drifted considerably from its original meaning. The original meaning was a reference to the difference in security between the area inside the Pale and the area outside the Pale. "Beyond the Pale" meant "on unsafe ground" and was in no wise a slur on the Irish themselves. Although the English did harbor profoundly ugly attitudes towards the Irish people, this phrase did not reflect those attitudes.

The term has drifted in meaning as people have forgotten Irish history. It now means "outside the range of acceptable belief or practice" -- a considerable change from its original meaning and completely lacking any reference to the Irish people.

Words and phrases change their meanings all the time. Many current words have drifted some distance from their original meaning. For example, "Catherine" stems from the same Indo-European root that underlies "castrate". Think of all the arguments THAT comparison raises!

Your plaint is an example of political correctness gone crazy.

We now return to your regularly scheduled programming.

[GARY]

One should read Crawford before being critical of Stone. If the tribunal is prosectuing a crime, testimonial hearsay is prohibited by the Constitution. That is now the law.

I do think that Stone's bias comes out a bit with the repeated reference to "Scalia." He should also mention Stevens, Kennedy, Souter, Thomas, Ginsburg, and Bryer. They also agreed that Roberts should be overturned.

I am troubled by dying declarations. The Court held "Testimony in turn is typically a solem declaration or affirmatin made for the purpose of establishing or proving some fact" at 51. Are not many dying declarations such a solem declaration. Perhaps lawyers will now be litigating the meaning of "Testimony".

Stone is not really one of the Bush haters. If he were, he would have quoted the following: "The Framers . . . knew that . .government officers could not alsways be trusated to safeguard the rights of the people. . ." at 67