Military Commission Rules on Coerced Evidence

By Benjamin Wittes
Friday, November 19, 2010, 10:51 AM

There has been a lot of debate about whether the result in the Ghailani trial would have been different in a military commission--and specifically about whether a witness Judge Kaplan excluded on grounds that the government knew of him because of the coercive interrogation of the defendant would have been permitted to testify in a commission. A lot of this debate takes place without reference to the actual rules of the commissions, which as Bobby notes, are quite restrictive with respect to the use of the derivative products of coerced statements.  So let's take a look at the Manual for Military Commissions, Rule 304 on "Confessions, Admissions, and Other Statements," which begins on p. 204, and try to imagine how this issue would have played out in a real military commission, rather than in the ones that live in the conservative imagination.

The rule begins by stating that "No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment . . . shall be admissible in a trial by military commission. . . ." So as a preliminary matter, if Ghailani's treatment in the CIA's program were deemed by a commission to have amounted to CID, then his own statements would be categorically barred. There is no particular reason to think that the government would have been any more willing to litigate the circumstances of Ghailani's interrogation in a commission than it was in federal court, where--as Judge Kaplan put it--the government did not "dispute for purposes of this motion that all of the statements made by Ghailani while in CIA custody were coerced and obtained in violation of his Fifth and Sixth Amendment rights." Assuming that the government would make a similar tactical concession in a military commission--and we can be pretty confident of that point--the result would have been the same with respect to any statements by Ghailani himself.

If, by some chance, the government did litigate the matter and managed to show that Ghailani's statements were elicited by means short of CID, it would still have a big problem under the military commission rules. In that situation, the following rule would govern:

A statement of the accused may be admitted in evidence in a military commission only if the military judge finds—
(A) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
(B) that—
(i) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or
(ii) the statement was voluntarily given.

Ghailani's confessions were clearly not made incident to lawful conduct at the point of capture, so that prong is irrelevant. And there is no question that at least some degree coercion took place, so it's hard to imagine that any of Ghailani's own statements would be deemed "voluntarily given" even if he could not show--and the government did not let the court assume--that they had followed torture or CID.

That brings us, then, to the question of derivative evidence, in other words, to the witness whom Judge Kaplan excluded. Let's leave aside two threshold problems with this witness that are evidenced in Judge Kaplan's opinion: the judge raised serious questions about his credibility, and he raised questions as well about whether the witness' own testimony was the product of some degree of coercion. Either one of those points, of course, might independently create a significant problem for the government in using him. But let's put that aside and assume for purposes of argument that he is a rip-roaringly great witness who would make the government's case. Under the commission rules, could his testimony come in? The best answer is that it probably could not.

As to the use of evidence derived from coerced statements--including, presumably, the availability of other witnesses whom the government learned about from Ghailani--the commission rule is again bifurcated between statements elicited through torture or CID on the one hand and coerced statements short of that on the other. So assume first, as we did with Ghailani's own statements, that the government chose not to litigate the circumstances of his interrogation and instead allowed the court to assume CID. Under such circumstances, the derivative evidence could come in only if:

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice.

The first prong here is really no different from the rule in federal court. The second is more complicated and seems to give a military judge some flexibility to admit derivative evidence. Whether it would actually permit the admission of evidence in a live case, however, would depend on whether the Fifth Amendment applies at Guantanamo in a military commission proceeding. After all, it would be hard to argue that the interests of justice would favor admission of a piece of evidence whose exclusion the Fifth Amendment would require. And while this is an open question of law, it seems very likely after Boumediene that the Fifth Amendment will apply--thus mandating precisely the inquiry in which Judge Kaplan engaged in federal court. (I'm not happy about this, but it's the world in which we live and intellectual honesty requires that we face that.) What's more, even if the Fifth Amendment doesn't apply, the notes on the rule in the military commissions manual itself seem suggest that the "interests of justice" standard will militate against admissibility, not for it. "The intention of Mil. Comm. R. Evid. 304(a)(5) is that the 'interests of justice' standard generally will restrict the admission of evidence derived from statements obtained by torture or cruel, inhuman, or degrading treatment (other than where the evidence would have been obtained even if the statement had not been made)," the discussion reads. In short, by one route or another, the inquiry in a commission would likely be rather similar to the inquiry in federal court, and it might end up being virtually identical.

More or less the same is true if the statements were the product of coercion short of CID. Under those circumstances, the rules say, the derivative evidence could be admitted if:

(i) the totality of the circumstances renders the evidence reliable and possessing sufficient probative value; and

(ii) use of such evidence would be consistent with the interests of justice.

To put the matter as simply as I can, it is easy to assert that things would have been different in a commission, but there is scant support for that in either the rules of the commissions themselves or in the constitutional law that lies beneath them.