by C.T. Rossi
by C.T. Rossi
Heard it from a friend who,
Heard it from a friend who,
Heard it from another you been messin' around.
~ REO Speedwagon
What may at first blush appear to be nothing more than the puerile paranoid ponderings of a pop song may soon become the law of the land — at least as far as the trying of accused terrorists is concerned. The Bush administration is proposing what are called "modest changes" to the procedural rules of military commissions charged with trying suspected terrorists housed at Guantanamo Bay. These changes can be defined as modest in the same way that guillotining effects a modest change on one's ability to wear a hat.
One proposed rule change would allow the use of hearsay evidence "unless it was deemed to be unreliable." That the very category of hearsay was created due to the fact that certain types of testimonial evidence are inherently unreliable does not seem to trouble White House legal "experts." This caliber of legal reasoning should dove-tail nicely with one of the proposed new "protective" rules which would bar the use of statements obtained by torture. But if you remember, torture has been redefined by the Bush administration as "excessive force" which is "malicious and sadistic"; however, it does not provide a blanket exclusion from "the infliction of pain" if it is not the interrogator's "precise objective." All this may seem dry legalese — an example might be better.
The U.S. military buys a "terror suspect" from an Afghani warlord for $5,000. The warlord assures the U.S. that the person being sold, let's call him Abdul, is a terrorist. Abdul, needless to say, denies any sort of activity and says that he was merely tending his flock when the warlord's men abducted him. The CIA isn't so sure about Abdul, so they send him off to Guantanamo for interrogation. Once at Guantanamo, interrogators ask Abdul again if he is a terrorist. He assures them that he is not. The interrogators suspect that his statement that he is not a terrorist might lack reliability because a real terrorist might lie and deny he is a terrorist. Just to be sure, the interrogators decide to put a compressor hose up to Abdul's right ear and blow out his eardrum. They don't do this because they hate Abdul and want to hurt him — heck, they just want to get the truth out of him. Abdul still maintains that he is not a terrorist and is just a shepherd. But the interrogators still don't know for sure and they think of the embarrassment if a real terrorist was let go on their watch — not to mention the fact that $5,000 of taxpayer money would have gone to waste. So they decide to leave him in a very uncomfortable position for a while, just to make sure. Well after a while, Abdul still maintains his innocence but he does admit that he sold some sheep to the government, back when the Taliban ruled Afghanistan. This leads the interrogators to conclude that Abdul is not with us but with the terrorists and he is shipped off for a military commission hearing.
Under the traditional rules of hearsay, the fact that an Afghani warlord said that Abdul was a terrorist would be inadmissible hearsay, and under the traditional notions of torture, Abdul would not have been mistreated but, if he were, such confessions under torture would not have been admissible. Abdul would have also had the right to be present at his trial and to face his accusers (two other rights that the new White House proposal would eliminate). At trial, Abdul could bring forth the facts that he has been sold to the U.S. by an Afghani warlord for $5,000 and that there was a biasing incentive for both the seller and the buyer not to question the transaction. If the government wanted to introduce evidence that Abdul said he sold sheep to the Taliban government, those who heard the "confession" would have to testify in court.
Under the new proposed rules, Abdul will not be allowed in court because of national security concerns. The court will hear that the "highly placed embedded operative" who handed Abdul over to U.S. authorities maintains that Abdul is a terrorist and that he confessed to collaboration with the Taliban. His "confession" could be introduced to the court by means of an official who heard from an official who was told by one of the interrogators that Abdul sold the sheep. The "torture exception" would not apply to Abdul's testimony as it was not he intent of the interrogators to hurt him, heck they weren't even sure whether he was a terrorist or not. What they were doing was merely utilizing a slightly older evidentiary method.
Such legal "innovations" if approved will assuredly make the old joke about the Nazi torturers and the captured Czech resistance leader relevant again. As the Nazis were torturing the Czech, they demanded to know from him the names of those people in the town who opposed the German presence. "I'll give you the names of those who support you," he replied, "it will take a lot less time."
August 1, 2006
C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.
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