NYT Room for Debate and Whether the Ghailani Verdict Cuts in Favor of Commissions

By Robert Chesney
Thursday, November 18, 2010, 9:25 PM

Over at the New York Times Room for Debate forum, Andy McCarthy, Orin Kerr, Diane Marie Aman, and I are engaged in an exchange of views about what lessons if any to draw from the Ghailani verdict.  So far there's not much actual debate (as opposed to parallel opening statements), but I did post a response to Andy's post (scroll down past Andy's post to see my reply) in order to take issue with his suggestion that in a commission the government more likely would have been able to get Habebe's testimony in, that it might well have gotten Ghailani's own interrogation statements in, and that a military panel as a general matter would be more likely than a civilian jury to convict.  In my haste to make these points, however, I made an embarrasing error--though it was one that weakened rather than strengthened my own argument.

In making the point that a commission likely would be no more hospitable than a civilian criminal court to admitting the statements Ghailani himself gave to interrogators at GTMO, I mistakenly cited to the evidence standard set forth under the 2006 MCA regime (which employed what amounts to a reliability test for pre-2006 statements not induced by torture, and a reliability+interests of justice test for post 2005 statements not induced by torture or CID treatment).  Famously the 2009 MCA very much tightened up this very rule, adopting a voluntariness standard across the board, subject only to a very narrow exception for interrogation on the battlefield immediately after the moment of capture.  It's a point I routinely make in illustrating how much the commission rules have improved over time, yet I completely blanked on it earlier today when posting my Room for Debate comment.  Ah well; it's certainly useful for a professor to be remininded of his own capacity for such mistakes just two weeks out from exam period!  The irony, of course, is that applying the correct standard makes my original point (that a commission would not be more receptive to admitting Ghailani's statements) far stronger.