10 Responses

1. <a href=”http://www.law.cornell.edu/supct/html/02-9410.ZO.html“>Supreme Court</a> in 2004: 

   “not all hearsay implicates the Sixth Amendment’s core concerns.”

   5.19.2009
   at 10:22 am EST Greg

2. Well, to be fair, the Bill of Rights isn’t really rooted in American values, so much as it is rooted in English values.

   5.19.2009
   at 12:08 pm EST dmv

3. Kevin,

   I too am dismayed that Obama is going to continue with the military commissions.  But let’s keep in mind that they will be used for a small number of detainees – approximately twenty or so I believe.  (My guess is that these are high value suspects who cannot readily be tried in federal court because of the Bush administration’s chicanery with interrogations). 

   As for your specific point about hearsay, my old evidence professor used to say if a lawyer can’t think of an exception to get around the hearsay rule, he/she is just not a good lawyer.  Keep mind that US courts even used to allow hearsay evidence that “had an indicia of reliability” prior to the Supreme Court’s decision in Crawford v. Washington.   In other words, it is unclear to me that these courts are fundamentally unfair just because they may permit some hearsay evidence.  

   I know that many in the human rights world are outraged but the fact of the matter is the Bush administration painted Obama into a very difficult corner, and many of the detainees will not be tried in federal court while others under a hopefully better-functioning military commission system.

   5.19.2009
   at 1:27 pm EST Milan

4. I agree that hearsay is less of an issue than it is made out to be, partly because of the point that Milan (and probably every) evidence professor made, partly also because at the end of the day what matters is the probable value of the testimony.

   Whether something is hearsay or not is relevant to its probable value, of course. But I don’t believe it is so paramount as to be unable to be given due weight in light of the general trustworthiness of the witness and the other evidence admitted.

   5.19.2009
   at 2:10 pm EST Patrick

5. Ben,

   I suspect that the Obama person is seeking to make the distinction that the military judge made in Hamdan’s case as to what parts of the Constitution in addition to habeas apply in Gitmo.  The military judge ignored the incorporation through the 14th Amendment process over the past 87 years since the Insular cases and put these detainees TODAY back in 1922.

   See
   No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008)

   PDF
   HTML

   I really encourage people to read Judge James Robertson’s opinion last summer where he denied the stay of Hamdan’s military commission.  It is well worth pondering.
    It is at Hamdan v. Gates, No. 04-CV-1519-JR, 2008 WL 2780911 (D.D.C. July 18, 2008), available at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1519-108 (memorandum order denying Hamdan’s motion for a preliminary injunction) (link).

   Best,
   Ben

   5.19.2009
   at 4:09 pm EST Benjamin Davis

6. Milan,

   I wish you had been the Obama spokesman!  Having been an evidence professor, I agree with your point about the exceptions swallowing the rule.  Had the official made that point — yes, hearsay will be allowed, but in practice nearly all hearsay comes in anyway — I would not have been so disturbed.  But to say that the hearsay rule does not reflect American values is just silly…

   5.19.2009
   at 6:37 pm EST Kevin Jon Heller

7. Kevin,
   Good post! Sadly, it seems that the Obama people  are becoming somewhat desperate when it comes to the remaining prisoners at GITMO.

   In response to a couple of the other comments (serious or not), I’d point out that the fact that U.S. evidence rules do allow lots of hearsay evidence to be admitted in criminal trials under the rubric of one or another of the many hearsay exceptions misses KJH’s point, which is well taken. The arrogantly dismissive tone of the statement about hearsay attributed to the “anonymous senior official.” in the NY Times article illustrates the disappointing and troubling (to me) process of rationalization that is taking place inside the Obama administration, which appears to see itself in a “no-win” situation when it comes to dealing with the remaining GITMO detainees. The administration’s very smart lawyers undoubtedly understand the difficulties (perhaps insurmountable) of successful prosecutions of most (all?) of the “high value” detainees in regular criminal trials in either U.S. federal court or regularly constituted military courts-martial, because the evidence of guilt has been spoiled by the stupefying incompetence and criminal acts of the Bush administration. But Obama would pay a heavy political price were he to admit this truth to the American public. I can almost hear the cries of self-righteous indignation from many in Congress and the media were such an admission made.  So, yielding to perceived political necessity, the Obama White House and its lawyers are desperate to come up with a formula that will allow them to obtain legally credible convictions of at least some of the Al Qaeda prisoners. Thus, we get the refurbishment/tweaking of the GITMO military commissions (according to the Times report KJH linked, pretty much “old wine in new bottles”), and the official’s dismissive comments about the restriction on hearsay, which has long served to protect the fundamental right of the accused in regular U.S. criminal trials to confront the witnesses against him.
    
   I fear the Obama people are making a serious mistake in taking this route. Someone else made the point that you could put a genuine Article III U.S. District Court at GITMO and its verdicts would still not be accepted by the rest of the world as legitimate: Everything associated with that place has an unpleasant oder about it. My bet is that the same will hold true for the “new & improved” military commissions at GITMO that the Obama lawyers are trying to concoct out of the ruins of Bush’s discredited “Kangeroo” commission system. There has to be a better, more principled way to deal with this problem. It’s time for the lawyers to face up to the facts, get creative and devise a legal solution to this difficult problem that is consistent with both domestic and international law and with our professed values. In my view, trials at GITMO are not the way to go. Do the GCs offer a lawful and principled way out? I wonder…….
    
    

   5.19.2009
   at 7:40 pm EST Charles Bobis

8.  hearsay is that much more intolerable in this context because of the stain of “extreme interrogation methods” and the circumstances of apprehension and detention that GITMO detainees are subjected to.  I don’t find the “hearsay always gets in somehow” argument persuasive in the context of the GITMO detainees given the totality of the circumstances.  The very nature of their confinement and the judicial process itself just supports the analysis underpinning the rejection of the pre-crawford ”indicia of reliability” scheme.  The hearsay exceptions seem acceptable in light of the numerous other protections typically in place but not found as it relates to the GITMO detainees. 

   5.20.2009
   at 7:58 am EST RIck L

9. I don’t really know that I follow that argument, Rick. Hearsay, as I am sure you know, is traditionally concerned with the impossibility of the tribunal ascertaining the truth of a statement made by someone not present to swear to it, ie the point of the rule is really to prevent evidence being admitted not under oath and cross-exam. So someone saying to the Court: ‘James said he saw the accused kill him’ is inadmissible because James is not swearing to his statement and can’t be tested on it. The US seems to emphasize the latter, but the point is the same.

   Hearsay is, of course, the building-block of many prosecutions at the investigation stage. It was probably a significant part of the intelligence package supporting the arrest/continued detention of each of these men, especially as early interogations yielded information about other people.

   In cases such as these, leaving to one side any questions about the value of the primary testimonies available, hearsay may be the best part of the case. A case may consist entirely of hearsay and intelligence ‘data’ (that X was in certain company at certain times, and certain places at others, etc).

   This leaves you with a very circumstantial case, but one that can still be very strong – if an Iraqi, for example, travels to Afghanistan in the company of known Al-Qaeda (I am completely fantasising here obviously) then that is very strong circumstantial evidence. But he might travel more or less independently and it might only be that the dates (as well as the mere fact) of the travel are suspicious.
   Hearsay, in this context, might well be the damning evidence, or at least the evidence that converts suspicion into high probability.

   So whilst I can appreciate if you are making an argument that the conditions of their trial are already so bad that any further derogations are adding insult to injury, and that is one thing, I don’t see any direct link between their current detentions and hearsay. In particular, I don’t see how granting them the protection against hearsay makes anything any better, and I have to admit I don’t see how it makes it worse, although I do understand that you might see it as a compounding of evils.

   Unless the hearsay you are worried about is that of tortured detainees? That would presumably go to the appropriate weight to be given the evidence, though, which is arguably the appropriate approach to hearsay in any case (it is, as I understand it, the civil law approach).

   5.20.2009
   at 9:32 am EST Patrick

10. Excellent discussion.

    This really isn’t about hearsay per se, it’s about the use of hearsay to faqbricate a “mosaic” which is then asserted as having sufficient weight to warrant indefinite detentions or assassinations.  See

    * Judge Kessler’s recent opinion in Ahmed v. Obama (D.D.C. 2009.05.11).

    http://www.pegc.us/archive/In_re_Gitmo_II/ahmed_opinion_GK_20090511.pdf

    * SCOTUSblog – Analysis: Dismantling a detention case, point by point, by Lyle Denniston (2009.05.14).

    http://www.scotusblog.com/wp/analysis-dismantling-a-detention-case-point-by-
    point/

    And once again, this stuff was just SOP for the Nazis and Soviets. The only thing the advocates of such policies are proving is their own disloyalty to the United States and their own absolute unfitness to hold any position of public trust — they are in fact subversives who are engaged in an effort to stage an underground coup d’etat against the Constitution and laws of the United States.

    On information and belief, I am completely serious: these people aren’t just neo-fascists and fools, they are traitors. Not by intent, but by criminal negligence and dereliction of duty. 

    And not merely traitors to the United States, but also to reason and humanity. They are nothing but new-age Nazis and Soviets who think and behave like animals because they think that’s the only way to fight a war. Yet these demented, hysterical fools never stop to realize why there are 6.5 billion human beings while Tigers are an endangered species. 

    Barrack Obama is being very badly advised on these issues, and heneed to figure that out — quick. Robert Gates is a war criminal: he should be fired immediately and indicted for his crimes. The same goes for every official at DoD, DOJ, and CIA who was complicit in the Bush administration’s war crimes.

    I have to believe that the President is a smart enough guy to understand that nothing is worse for discipline and morale than to excuse, coddle, ignore, aid, or abet dereliction of duty or criminal conduct. Sherman used to hang his soldiers if they were caught looting or otherwise disobeying orders or regulations prejudicial to good order, and he did it precisely to maintain good discipline and morale.

    No one who participated in the various war crimes against prisoners over the last seven and half years was acting in good faith — at best they were acting from criminal negligence. If the President doesn’t reverse course on these issues, the only result will be that his administration winds up being a gang of war criminals and incompetents just like the Bush administration was. Like Lincoln before him, he needs to go to school and wise-up: Gates and Petraeus are his McClellan and Hooker, and he needs to get rid of them both because they will only damage his administration as long as they remain. It time to clean house at DoD, DOJ, and CIA, to include firings and criminal prosecutions.

    It’s time to restore order and the rule of law Mr. President, no excuses, compromises, or evasions.

    5.20.2009
    at 1:07 pm EST Charles Gittings

Trackbacks and Pingbacks

1. There are no trackbacks or pingbacks associated with this post at this time.