March 26, 2002


Spinning the Military Tribunals : 'A Mere Pretense of Legal Process' (Nat Hentoff, 3/25/02, Village Voice)
Where did the evidence come from originally? Whose hands did it pass through before being used against the defendant in a military tribunal? Could the so-called evidence have come from a person tortured by police in one of those countries where torture is a customary form of persuading prisoners to say what the authorities want to hear?

Mr. Hentoff raises a series of objections to the tribunals, but it's probably sufficient just to look at the problems with his arguments where evidence is concerned. He objects that the tribunals do not require the "chain of evidence" rules that obtain in our domestic courts. But how could these rules be maintained? Suppose a GI raided a cave in Afghanistan and found papers that show a defendant was involved in Al Qaeda terror planning. He handed the papers to a buddy who had gathered other papers in a different cave who gave them to his commanding officer, who gave them to his, who gave them to someone in JAG. In a criminal case you would have to authenticate every step of this process with carefully kept records, etc. How do you do this with such papers? Can the guys even remember which cave they were in? Do they remember which guy found them originally? Did they keep different papers from different caves segregated? Who the heck knows? Are we really going to exclude evidence for these reasons? That would be idiotic. Is it required by the Constitution? Absolutely not; in fact, it isn't constitutionally required in American courts; it's just an accretion of overexpansive criminal rights rulings.

Suppose the Pakistani secret services did torture a guy and he revealed where a cache of papers were; are we going to exclude the evidence because it might have been excluded in an American court if the police had tortured someone? This too seems ridiculous. There may be some reason to exclude evidence that domestic police acquire in this fashion, because it may have some deterrent effect. Can anyone argue that our excluding this evidence will deter torture in a foreign nation? Not with a straight face.

Suppose our forces captured an Al Qaeda member and interrogated him. He confessed. But he wasn't read the Miranda warning. Should the confession be excluded? Do American soldiers, in battle, really need to warn prisoners not to talk when getting them to talk might reveal information that could save those soldiers lives? Is this proposition even sane?

Justice Arthur Goldberg famously opined that the Constitution is not a suicide pact. To allow terrorists and enemy soldiers to potentially go free just because soldiers in the field were not able to observe every nicety of our elaborate scheme of criminal procedures seems to me to border on the suicidal. By itself, the skirting of these unnecessary evidentiary rules more than justifies the use of military tribunals.

Posted by Orrin Judd at March 26, 2002 10:01 PM
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