– Joanne Mariner
Last month, President Obama signed the 2010 National Defense Authorization Act, which included a package of changes to the rules governing military commission proceedings. Called the
Military Commissions Act of 2009, the new law replaces — and somewhat improves upon — the Bush-era military commissions legislation known as the Military Commissions Act of 2006.
In Part One of this multi-part series, I examined some of the jurisdictional and definitional issues raised by the new law, pointing out areas in which the law either followed or varied from the MCA of 2006.
In this column, I’ll review some of the evidentiary rules contained in the new law, as well as the law’s improved rules on defense resources.
This is an area in which significant improvements were made. While the previous military commissions law barred torture, it allowed coerced statements to be entered into evidence, including statements obtained as a result of cruel, inhuman or degrading treatment that were taken before December 30, 2005. (December 30, 2005, was the date of the entry into force of the Detainee Treatment Act, which outlawed cruel, inhuman or degrading treatment. More to the point, the CIA’s worst abuses were carried out in 2002 to 2004, so under the earlier military commissions law statements coerced from detainees in CIA custody might have been admissible.)
The good news is that the revised MCA entirely bars statements made as a result of cruel, inhuman, or degrading treatment. It does, however, allow involuntary statements made by persons other than the accused if the conditions in which the statements were taken do not cross the cruel, inhuman or degrading treatment threshold.
For the defendant’s own statements, the rules are even stricter. In general, the new law establishes a voluntariness standard for the statements of the defendant, but it establishes an exception for involuntary statements made during military operations — for example, statements made by a defendant who was captured by US military forces on the battlefield. Functionally, the rules regarding the voluntariness of defendants’ statements are close to those used in federal court, as a federal court would most likely apply an exception to the Miranda rule for battlefield captures. (The case of New York v. Quarles created a "public safety" exception to Miranda for situations where a threat to public safety compels law enforcement to question a suspect immediately.)
The Obama administration had requested Congress to establish a blanket voluntariness standard for defendants, expressing the view that there is a "serious risk" that courts would hold that the admission of a defendant’s involuntary statements in military commission proceedings is unconstitutional. (The administration’s position was reportedly based on a classified legal opinion issued earlier this year by the Justice Department’s Office of Legal Counsel, which concluded that detainees tried by military commission can claim certain constitutional rights, including the prohibition on the use of statements obtained coercively.)
The new law also contains a subsection titled "Determination of Voluntariness," which did not exist in the previous law (since the previous law showed no special concern for voluntariness). The subsection instructs the military judge about the kinds of circumstances he or she should consider when making an assessment as to the voluntariness of a defendant’s statement. It specifies that the judge should consider the "totality of the circumstances," including, as appropriate, "[t]he lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused."
This provision was inserted as a not very subtle allusion to the questioning carried out at Guantanamo by the FBI’s so-called "clean teams." As the Washington Post reported in 2008, the FBI sent teams of interrogators to Guantanamo in 2006 to re-interrogate detainees such as Khalid Sheikh Mohammed who had previously been held – and tortured – by the CIA. The goal of these "clean teams" was to obtain untainted evidence that could be used in court.
Finally, another way in which the new military commissions law departs from the 2006 law is in the area of hearsay evidence. Although the new law still allows the use of hearsay, it sets much tighter rules for determining whether hearsay should be admitted. (The previous law had extremely loose hearsay rules, barring only hearsay evidence that was shown to be unreliable or lacking in probative value.)
In the area of defense resources, the new law represents a real reform. Defense resources — or, more accurately, the lack thereof — were a key problem that plagued the previous set of military commissions. Defense requests for basic resources, such as necessary expert witnesses, were systematically denied during the previous military commission proceedings, even in capital cases.
The new legislation provides that the defense should have a "reasonable" opportunity to obtain witnesses and evidence, and that such opportunity shall be "comparable" to that available in the federal courts. (The language falls somewhat short of the federal rule. In the federal courts, as in courts-martial, the prosecution and the defense must have "equal opportunity" to obtain witnesses and evidence.) But while the new law does not establish a rule of parity between prosecution and defense, it evens the playing field much more than the previous law.
Importantly, the law includes special provision for capital cases. Just as in federal court (see 18 U.S.C. § 3005), a defendant charged with a capital offense before a military commission is entitled to the appointment of at least two attorneys, one of whom must be "learned" in the law of capital cases.