Maine Owl

Rules of evidence in 2006 law were written for kangaroos

The New York Times covers today the amazing saga of Col. Morris D. Davis, former chief prosecutor for the Guantánamo Bay Military Commissions. Maine Owl has posts HERE and HERE describing the circumstances under which Morris resigned from his post last October, and the subsequent and likely related resignation of Pentagon general counsel William Haynes.

Former Prosecutor to Testify for Detainee
Col. Morris D. Davis, once chief prosecutor at Guantánamo Bay, Cuba, and still with the Air Force, is now a chief critic.
By WILLIAM GLABERSON - Published: February 28, 2008

Until four months ago, Col. Morris D. Davis was the chief prosecutor at Guantánamo Bay and the most colorful champion of the Bush administration’s military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging “Dracula out into the sunlight.”

Then in October he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run.

Still in the military, he has irritated the administration, saying in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.

Now, Colonel Davis has taken his most provocative step, completing his transformation from Guantánamo’s chief prosecutor to its new chief critic. He has agreed to testify at Guantánamo on behalf of one of the detainees, Salim Ahmed Hamdan, a driver for Osama bin Laden.

Colonel Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Mr. Hamdan was innocent, but that he was ready to try to put the commission system itself on trial by questioning its fairness. He said that there "is a potential for rigged outcomes" and that he had "significant doubts about whether it will deliver full, fair and open hearings."

Wow. This is the kind of person that gives me hope that the ideals of my country are real, and not just throwaway lines for President Bush, Vice President Cheney, and their minions. Here is a military officer once stationed deep inside the process who believed even those he thought were the most dangerous anti-U.S. "combatants" in the world deserved a fair trial, one that was really fair and could lead to acquittal. When it became evident that others above him felt that the proceedings rightfully could be conducted as show trials with pre-determined verdicts of guilt, he chafed and resigned. Now he is a witness against the process!

Below the fold I am including some subsections on rules of evidence from the Military Commissions Act of 2006 under which these trials are being conducted. No decent American should think very highly of this. No matter how much Bush tries to scare us, how can we reconcile our consciences to this separate "justice" system so un-American at its core? It allows arbitrary use of faulty evidence & exclusion from view of secret evidence by official fiat (though it's claimed not to be secret). In fact it's shameful that Congress would cower before Bush's fear-mongering to hand so much power to people conducting such an obviously flawed process.

Excerpts from the Military Commissions Act of 2006 (with a couple of notes)

§ 949a. Rules

...

(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.

This speaks for itself. The type of evidence that can convict you in these proceedings can be completely made up by third persons, coerced from you or others, or obtained without any sort of warrant, and then accepted as fact. Sure, you can try to prove the evidence is "unreliable or lacking in probative value." This stands on its head normal trial procedure where the prosecution is required to show that the evidence against you is solid.

What about "secret" evidence? President Bush, Pentagon minions, and other officials claim, as spokesman Brigadier General Thomas Hartmann did earlier this month [PBS News Hour (Feb. 11)], that a defendant would have "the right to examine all evidence used against him by the prosecution."

Well, no, not according to the Act. In fact, there is no real 6th Amendment right to a public trial and confront evidence because closure of the trial and exclusion of evidence from the defendant's direct view is at official discretion with incantation of magic words, "national security" or "sources and methods":

§ 949d. Sessions

(d) CLOSURE OF PROCEEDINGS.—(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter, but only in accordance with this subsection.

(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific
finding that such closure is necessary to—

(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security,
including intelligence or law enforcement sources, methods, or activities; or

(B) ensure the physical safety of individuals.

(3) A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either
trial counsel or defense counsel.

...

(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

§ 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.

Don't you think, after reviewing this, that it is an incredible stretch for an official to tell us that "the right to examine all evidence used against" a defendant by the prosecution is the slightest bit operable?