Saturday, October 31, 2009

Military Commissions in 2009 and Hearsay Evidence (Still?!)

I am a fairly diligent reader of (online) newspapers. But I confess that the enactment of the Military Commissions Act of 2009 a few days ago escaped my attention. Did it escape yours?

Is it true that "reliable hearsay" may still routinely be admitted in Military Commission adjudicative proceedings? Cf. Warren Richey, "Obama endorses military commissions for Guantánamo detainees," Christian Science Monitor (Oct. 26, 2009). This same article states, "The new law excludes statements obtained through torture or through cruel, inhuman, or degrading treatment. But Congress empowered the secretary of Defense to enact rules permitting admission of coerced statements and hearsay evidence. These are departures from trial rights routinely provided to US service members in courts-martial."

It's possible that the Obama administration succumbed to the probable myth that a rational ("reasonable"? "average"?) trier of fact knows how to sort hearsay wheat from hearsay chaff. See also this post.

I will have to do some research on the new Act. I am not optimistic about what I will find. When people acquire the reins of power, they tend to become more impressed with the relative priority of security over liberty and justice or -- if you want me to be less bombastic and dramatic -- over the importance of avoiding false positives. Am I being unduly cynical? I honestly don't think so.

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The dynamic evidence page

It's here (more or less): the law of evidence on Spindle Law. See also this post.

Browser-based evidence marshaling: MarshalPlan in your browser

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