Wednesday, February 20, 2008

"You have a right to be tortured, ..."

"... you have no right to be silent,
you have a right to talk to our attorneys,
if we can't afford to let you have the one you want,
we will appoint one to pretend to represent you...."


In a breathless display of chutzpah, the maladmininstration (with their Mighty Wurlitzer RWA minions sure to be singing along shortly) is flacking the upcoming 'trials' of the six alleged al Qaeda top dogs as giving them an "extraordinary set of rights".:

With an eye to the verdict of history, the Defense Department said Monday that the alleged Sept. 11, 2001, plotters would be given an "extraordinary set of rights" when they go on trial before military tribunals at Guantanamo Bay, Cuba

[....]

"So it's an extraordinary set of rights that we're providing to the accused," Air Force Brig. Gen. Thomas Hartmann told a Pentagon press conference Monday.

But the tribunals will be run by the U.S. military, with military lawyers and military judges. Even Defense Secretary Robert Gates has said that trials at the island prison would carry "a taint."
Yes, you heard that, we're giving them an "extraordinary set of rights". I guess I should agree and admit that the "rights" afforded are by any measure, quite "extraordinary", being far from the normal procedures we've developed from our Constitution and Bill of Rights, and refined over the last couple centuries, for the trial of those accused of even the most heinous acts, such as serial killers and murdering pederasts.

But are we giving them extraordinary rights? No. Any "rights" they won were hard-fought (in many cases right up to the U.S. Supreme Court).

The maladministration's original scheme (such as it was, consisting in part of executive directives establishing "military tribunals") was knocked down by the U.S. Supreme Court in the Hamdi case.

The maladministration, in response to the Hamdi case, then pushed for (and got) the Detainee Treatment Act (DTA), which supposedly provided Congressional authorisation for the military commissions that Dubya wanted so badly.

But the Supreme Court struck down the DTA at least in part, in the Hamdan case, so the maladministration went on to the third iteration, the Military Commissions Act (MCA) [PDF file]. Court cases on aspects of the MCA are winding their way up the pipe, but for now, it is the MCA that "gives" these accused terrorists their "rights" in the prescribed "military commissions".

Wasn't it so kind of the maladministration to give them these "extraordinary [...] rights"? No. The maladministration was kicking and screaming the whole way while various detainees fought in court for their rights (and won some along the way). But the larger issue is that "rights" are not some thing to be bestowed as a kindness by the gummint, in some kind of noblesse oblige. They are a thing that inheres in all the people in a country based on law and human rights: "We hold these rights to be self-evident...." and so on.

The maladministration contends that these high-profile prisoners are being given more "rights" than were the Nazi defendants in Nürnberg or the accused Abraham Lincoln assassins (from the news article):
They will receive more rights than the top Nazis tried at Nuremberg, Germany, military officials pointed out, and far more than the plotters in the assassination of Abraham Lincoln, who were hanged within three months.
Not quite sure on what basis they make this claim; the maladministration has hardly come forward with an explanation of how they arrived at such a conclusion. But that hardly matters; what matters is what today's laws here require under the present circumstances.

One thing is certain: We didn't torture confessions out of the Nazi war criminals.

But what does the MCA permit (and what "rights" does it so generously bestow)?

I did this post a while back. But let's step through it again:


Right to a lawyer? You get a military defense counsel. The military defense counsel must be a "judge advocate" (read: U.S. military officer):
    `(c) Military Defense Counsel- Subject to subsection (e), military defense counsel detailed for a military commission under this chapter must be a judge advocate (as so defined) who is--
      `(1) a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; and
      `(2) certified as competent to perform duties as defense counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member.
You might get a civilian defence counsel ... but ... you will have a military defence counsel. Nice of them to provide one, eh?

Will you get the civilian defence counsel you want? Maybe ... if the gummint wants to allow them. They may deign to deny you one that doesn't have proper "security clearance" (or perhaps they just won't let them see any classified evidence).

Any stipulations on counsel? And restrictions (outside the above)? Any thing that might interfere with their duties?:
    `(4) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information and may not divulge such information to any person not authorized to receive it.
    `(5) If the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel.
So.... your counsel might see classified evidence ... maybe ... but if you're not authorised to see it (and how many Gitmo prisoners are?), he can't share it with you ... and you still have to deal with the obligatory lawyer they assigned you (and see here for what that might entail).


Coerced evidence? The act permits convictions based on evidence that was literally beaten out of a witness, or obtained through other abuse by either the federal government or by other countries:

`Sec. 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

    `(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.
    `(b) Exclusion of Statements Obtained by Torture- A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.
    `(c) Statements Obtained Before Enactment of Detainee Treatment Act of 2005- A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
      `(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
      `(2) the interests of justice would best be served by admission of the statement into evidence.
    `(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--
      `(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
      `(2) the interests of justice would best be served by admission of the statement into evidence; and
      `(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.
So if it's a "reliable" confession or admission obtained by "cruel, inhuman, or degrading treatment" (CIDT), it can be used (except if obtained after Congress stepped in and banned CIDT, and said that evidence from such [now-"illegal"] CIDT could not be used. But the stuff from before? Well, no problem there.

And notice the careful definition of what's excluded, and compare with what the maladministration now is claiming is not "torture" and is merely "CIDT"; they want the waterboarding evidence done back in 2002 to be admissible. But as explained by Professor Balkin at Balkinization, even "CIDT" was and is banned by treaty in any case. In the eyes of the maladministration though, it's only "bad" evidence (as well as obtained illegally) if done after Congress stepped in and said that it goes beyond the pale. Still the same act of coercion, though.


Rules of evidencce? The normal Article III court Rules of Evidence are disposed of. Here's the new ones:
    `(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions:
      `(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.
      `(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.
      `(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
      `(D) Evidence shall be admitted as authentic so long as--
        `(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and
        `(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.
      `(E)
      `(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.
      `(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.
      `(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed--
        `(i) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or
        `(ii) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

No Fourth Amendment.

No Fifth Amendment.

No exclusion of "hearsay evidence" if someone [read the gummint's appointed judge] thinks it is "probative". What's the problem with "hearsay evidence", you say? One of the Fifth Amendment's rights is the right to face your accuser. This boils down to the right to cross-examine them and to poke holes in their story, find out about conflicts of interest, character and reliability of the witness, etc. To get such "hearsay evidence" tossed in a military commission, you have to "demonstrate" that it is "unreliable". But that's what cross-examination is supposed to afford. And if what you have is "hearsay evidence", how can you ask the original source of the evidence about how he got it, what were the circumstances, how observant he was, etc.? It's allowing in the gummint's testimony as unchallengeable fact, and then laying the burden on you to prove that the facts are otherwise.... The gummint may (but is not required to) provide the "general circumstances under which the evidence was obtained", but even this may be "constrained" by the gummint's privilege to withhold "classified information".

And, just in case, they can keep out your evidence if it causes "confusion of the issues"....


What about classified materials?:
    `(f) Protection of Classified Information-
      `(1) NATIONAL SECURITY PRIVILEGE- (A) Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. The rule in the preceding sentence applies to all stages of the proceedings of military commissions under this chapter.
      `(B) The privilege referred to in subparagraph (A) may be claimed by the head of the executive or military department or government agency concerned based on a finding by the head of that department or agency that--
        `(i) the information is properly classified; and
        `(ii) disclosure of the information would be detrimental to the national security.
      `(C) A person who may claim the privilege referred to in subparagraph (A) may authorize a representative, witness, or trial counsel to claim the privilege and make the finding described in subparagraph (B) on behalf of such person. The authority of the representative, witness, or trial counsel to do so is presumed in the absence of evidence to the contrary.
      `(2) INTRODUCTION OF CLASSIFIED INFORMATION-
        `(A) ALTERNATIVES TO DISCLOSURE- To protect classified information from disclosure, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--
        `(i) the deletion of specified items of classified information from documents to be introduced as evidence before the military commission;
        `(ii) the substitution of a portion or summary of the information for such classified documents; or
        `(iii) the substitution of a statement of relevant facts that the classified information would tend to prove.
        `(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES- The military judge, upon motion of trial counsel, shall permit trial counsel to introduce otherwise admissible evidence before the military commission, while protecting from disclosure the sources, methods, or activities by which the United States acquired the evidence if the military judge finds that (i) the sources, methods, or activities by which the United States acquired the evidence are classified, and (ii) the evidence is reliable. The military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence.
        `(C) ASSERTION OF NATIONAL SECURITY PRIVILEGE AT TRIAL- During the examination of any witness, trial counsel may object to any question, line of inquiry, or motion to admit evidence that would require the disclosure of classified information. Following such an objection, the military judge shall take suitable action to safeguard such classified information. Such action may include the review of trial counsel's claim of privilege by the military judge in camera and on an ex parte basis, and the delay of proceedings to permit trial counsel to consult with the department or agency concerned as to whether the national security privilege should be asserted.
      `(3) CONSIDERATION OF PRIVILEGE AND RELATED MATERIALS- A claim of privilege under this subsection, and any materials submitted in support thereof, shall, upon request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused.
      `(4) ADDITIONAL REGULATIONS- The Secretary of Defense may prescribe additional regulations, consistent with this subsection, for the use and protection of classified information during proceedings of military commissions under this chapter. A report on any regulations so prescribed, or modified, shall be submitted to the Committees on Armed Services of the Senate and the House of Representatives not later than 60 days before the date on which such regulations or modifications, as the case may be, go into effect.
So, if they want to, the gummint can "edit" evidence to exclude "classified information", including (but not limited to) "sources, methods, or activities by which the United States acquired the evidence", as long as the gummint thinks the "evidence" is "reliable". But, for those weenies out there that think this might be a tad unfair, "[t]he military judge may require trial counsel to present to the military commission and the defense, to the extent practicable and consistent with national security, an unclassified summary of the sources, methods, or activities by which the United States acquired the evidence". They don't have to, though. And no specifics, mind you. I mean, nothing to hang your hat on if you want to impeach the evidence, how it was obtained, or how reliable it is....


How about the right to summon witnesses and to get exculpatory information?:
`Sec. 949j. Opportunity to obtain witnesses and other evidence
    `(a) Right of Defense Counsel- Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense.
    `(b) Process for Compulsion- Process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence--
      `(1) shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and
      `(2) shall run to any place where the United States shall have jurisdiction thereof.
    `(c) Protection of Classified Information-
    `(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable--
      `(A) the deletion of specified items of classified information from documents to be made available to the accused;
      `(B) the substitution of a portion or summary of the information for such classified documents; or
      `(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.
    `(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.
      `(d) Exculpatory Evidence-
      `(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).
      `(2) In this subsection, the term `evidence known to trial counsel', in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.
    So you can get compulsory process for witnesses within U.S. jurisdiction ... but if they're -- 'conveniently' -- over in Afghanistan or Timbuktu, wherever, you're just SOL.

    And if the witness you seek happens to have a "classified" job -- ohhhhh, say, like being a CIA agent... -- then the production of the witness may reveal classified "sources, methods, or activities" and maybe -- just maybe -- all you'll get is a summary, if the judge looks on you kindly: "The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence."

    And if the exculpatory evidence itself is "classified", all you get is a "summary". From the maladministration that thinks that OLC white papers, not to mention Karl Rove's e-mails, are Sooper-Dooper Tippy-Toppy Sensitive Secrets.... What a deal!

    And what to make of this?: If there's classified information, the gummint may instead provide "the substitution of a statement admitting relevant facts that the classified information would tend to prove." Does the gummint get to decide what facts it wants to "admit"? Or must it admit any facts at issue in favour of the defendant if it doesn't otherwise provide the information on discovery (or some sanitized "summary" thereof). Not specified, but hardly something one can reassure oneself would be done.


    Do the detainees really have it better than the Nürnberg defendants? The Nürnberg defendants didn't have to contend with coerced confessions, or with the withholding of classified information (and just having a "summary" presented, without the ability to challenge the specifics, or inquire as to the methods, and thus the reliability of the "evidence" used for such summaries). They got to face their accusers.

    ...

    These trials are indeed "extraordinary". Why they should be "extraordinary", and not an ordinary trial by long established procedures considered fair, is something the maladministration has not explained in any convincing manner. Maybe we can find out why....


    Update

    Here's Ross Tuttle, writing in The Nation, on the MCA "trials":
    Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials have been rigged from the start. According to Col. Morris Davis, former chief prosecutor for Guantánamo's military commissions, the process has been manipulated by Administration appointees to foreclose the possibility of acquittal.

    Colonel Davis's criticism of the commissions has been escalating since he resigned in October, telling the Washington Post that he had been pressured by politically appointed senior Defense officials to pursue cases deemed "sexy" and of "high interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. "I concluded that full, fair and open trials were not possible under the current system," he wrote. "I felt that the system had become deeply politicized and that I could no longer do my job effectively."

    Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions' bias--a revelation that speaks to fundamental flaws in the Bush Administration's conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else.

    When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

    "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

    "I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

    Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
    "Judge Dredd", indeed.

    From later in the article:
    Currently, in his capacity as Pentagon general counsel, Haynes oversees both the prosecution and the defense for the Guantánamo commissions.
    Gives you the warm fuzzies, doesn't it?

    More in the article. Read it.


    Update 2

    The maladministration is flogging this "Better than Nürnberg" meme on its buddies overseas:

    WASHINGTON - The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terrorist attacks by recalling the executions of Nazi war criminals after World War II.

    A four-page cable sent to U.S. embassies and obtained Tuesday by The Associated Press says that execution as punishment for extreme violations of the laws of war is internationally accepted and points to the 1945-46 International Military Tribunals as an example. Twelve of Adolf Hitler's senior aides were sentenced to death at the trials in Nuremberg, Germany, although not all were executed in the end.
    Wonder if they're buying it? Oh, maybe the Brits will ... they're easy marks. ;-)

    More on this cable here:
    Despite the confidence of military prosecutors, the case has been clouded by revelations that the key suspect, Khalid Sheikh Mohammed, the suspected mastermind of the attacks in which hijackers flew planes into buildings in New York and Washington, was subjected to interrogation tactics that critics call torture.

    The cable refers specifically to this and instructs diplomats to advise foreign governments that the tribunal will not accept evidence obtained through torture and that the defendants can raise objections to any statements they argue they made under coercion. Those decisions will be up to the judge, it says.

    But it notes a distinction between torture and "cruel, inhuman and degrading treatment" that was outlawed by legislation sponsored by Sen. John McCain, R-Ariz, now the leading Republican candidate for the 2008 presidential nomination and a former prisoner of war during Vietnam.

    The cable informs diplomats that statements made by defendants under such conditions before the passage of the Detainee Treatment Act of 2005 may be considered by the court.
    As I was saying above....

    If anyone has a link to the text of the cable, drop me a comment, thanks!


    Update 3

    DDay at Digby's Hullabaloo blog has more.


    Update 4

    More from Col. Morris Davis:
    My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

    Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue — efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

    At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.
    (h/t to the indefatigable researcher "sysprog" over on Glenn Greenwald's blog)

    2 Comments:

    At 8:03 PM, Blogger Joshua Noyes said...

    Did I read that correctly that hearsay is appropriate for these trials and that it is incumbent upon the defendant to show that the hearsay is unreliable?

     
    At 3:13 PM, Blogger Arne Langsetmo said...

    Hi Josh:

    Yes. I've updated it with more commentary on the subject of "hearsay". See above.

    Cheers,

     

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