Wednesday, July 26, 2006

Here We Go Again: Hearsay, Shmearsay -- Any Good Old Hearsay Is Good Enough for the Commissions

Hearsay has it that the administration won't be denied its hearsay:
David S. Cloud & Sheryl G. Stolberg, White House Bill Proposes System to Try Detainees (July 26, 2006).
A justification sometimes seen & heard on C-Span: "They're criminal terrorists and they don't deserve anything more." Some folks need a refresher course on the purpose of adjudication.

The New York Times is condemned now and then for reporting stories from anonymous sources. But it's o.k., I guess, to condemn detainees on the basis of anonymous hearsay reports. It would be so much trouble and expense to track down available hearsay declarants. Just trust that hearsay stuff and imprison (further) those detainees -- or just shoot (hang?) them. We have to protect ourselves, don't we?

Although it may not be a good idea to exclude all hearsay, the notion that hearsay is generally just as good as first-hand accounts is a myth.

I'll bet that some triers of fact on commissions would do a decent job of evaluating hearsay. But it would be a bit better if those triers had some experience and training in evaluating hearsay. And all the training and experience in the world won't do much good if the triers of fact have next-to-no information about the hearsay declarants.

The evaluation of such hearsay accounts by human sources in Afghanistan and elsewhere is greatly complicated by the fact that much of it probably consists of tiers of hearsay (and probably little or nothing is known about many of the intermediate links in such hearsay chains) and that in many cases the abilities (and memories) of the translators (out there in Afghanistan and possibly also in Guantanamo) are questionable.

Yes, justice is sometimes inconvenient and expensive. But perhaps paying, say, 1/10 the cost of an aircraft carrier for better fact-finding for the detainees at Guantanamo (and elsewhere?) would be worthwhile. The rest of the world probably thinks so and it might respect us more if we showed that we are willing to spend time and money to make proceedings fair and fairly accurate even for people who we think meant us serious harm. And do remember that sometimes mistakes are made {Don't you love the passive voice?}: some of the people who we think tried to do us harm did not try to do so; they were instead, e.g., goatherds who were caught up in an indiscriminate sweep or were taken into custody as a result of misjudgments resulting from heightened fears and suspicions in times of military conflict.

If we really believe in principles, we must be prepared to pay a price for them.