Saturday, January 13, 2007

The Question of the Need for the Hearsay Rule Revisited: The Possible Lessons of Guantanamo

Nat Hentoff, that tireless crusader for civil rights and civil liberties -- i.e., that stout defender of the rule of law -- offers interesting comments on the Denbeaux studies of the results of proceedings before the Combatant Status Review Tribunals [CSRT]. See Nat Hentoff, America has slipped deeper into a legal black hole, Journal Times Online (Jan. 13, 2007):
In recent months, two extensively documented reports from New Jersey's Seton Hall Law School, based entirely on Defense Department data, rebut the administration's contention - exemplified by departed Defense Secretary Donald Rumsfeld - that most of the detainees "are the best-trained, most vicious killers on the face of the Earth."

Researched and written by law professor Mark Denbeaux; his son, Joshua (counsel to two Guantanamo detainees); and law students at Seton Hall, the reports demonstrate that: "Only 8 percent of the detainees were characterized (in the Defense Department data) as Al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with Al Qaeda at all." As for those picked up in Afghanistan, "86 percent were arrested by either Pakistan or the Northern Alliance and turned over to United States custody."

And there is this revealing information: "This 86 percent of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time when the U.S. offered large bounties for capture of suspected terrorists." The captives in these mass roundups were hardly screened carefully for their terrorist connections by the bounty hunters - nor were they carefully screened, according to international law criteria, by our armed forces.

Once at Guantanamo, to what extent were these prisoners given the due-process rights ordered by the Supreme Court in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006)? This is what the Seton Hall reports found in the Defense Department documents: "When considering all the hearings, 89 percent of the time, no evidence was presented on behalf of the detainees." And the government's classified evidence, intended to be the most powerful - evidence the prisoners were not allowed to see and rebut - was always presumed by the tribunal to be reliable and valid. So much for any presumption of innocence - essential to due process.

The evidence against the detainees was always presumed to be "reliable and valid"!?!?

If I am not mistaken, the CSRT proceedings that Denbeaux studied were governed by the old Military Commissions rules, which imposed no special requirements for the use of hearsay evidence and permitted the Tribunal to consider all evidence having probative value in the eyes of a reasonable person. According to Hentoff and, apparently, Denbeaux and his collaborators [I wonder: will someone attack this post for relying on hearsay?], it appears the CSRT never found the evidence wanting in probative value. This finding of the Denbeaux studies is rather startling -- given that a substantial number of the detainees came into U.S. hands as a result of arrests made by Pakistan and the Northern Alliance and that at least some of these arrests were made "at a time when the U.S. offered large bounties for capture of suspected terrorists." Can it be that the evidence supporting the detention of all such persons was such that it had probative value in the eyes of a reasonable person? One suspects that the reason that the Tribunal in such instances found the evidence sufficiently probative to be considered was that the Tribunal had before it nothing other than a barebones report by some American military person who reported that someone in Pakistan or someone in the Northern Alliance had taken the detainee into custody because some other person had supposedly reported that the detainee was a combatant, a terrorist, or some such thing, and that the Tribunal implicitly (or possibly explicitly) reasoned that it could not release any one detainee detained on the basis of such evidence without releasing all similarly-situated detainees. If so, perhaps this sad story suggests once again that the hearsay rule does indeed have an important function, a function that a requirement of "reasonable probative value" (or some such formulation) does not adequately perform. If so, the next question is whether the new rules for proceedings before the military commissions -- rules that require that the detainee be given advance notice that hearsay evidence will be used against him -- sufficiently performs the function or functions that the hearsay rule serves. (Much depends, I would think, on whether the detainee has the resources and the opportunity to conduct a pre-hearing investigation of the hearsay evidence to be used against him. {Even the opportunity to conduct such an investigation does not guarantee that jsutice will be done. Imagine the many obstacles that any such investigation would face.})

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