By Stephen H. Carpenter, Jr.
We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.
–Justice Robert Jackson
Nuremburg War Tribunals
On January 22, with two swipes of his pen, President Barack Obama began reconstructing America’s record of justice by halting the military commissions, ordering the closure of the Guantánamo prison, reaffirming a blanket prohibition against torture and deterring other “outrages upon personal dignity (including humiliating and degrading treatment).”1 While each of these policy revisions is significant, none is as fundamental as the unconditional denouncement of coercive interrogation tactics which, while less egregious than torture, are no less illegal.
President Obama’s Executive Order, entitled “Ensuring Lawful Interrogations,” arguably rectifies a military commission system that segregated the rights of detainees according to when they were interrogated. In 2005, Congress passed the Detainee Treatment Act (DTA), which, in part, prohibited “cruel, degrading and inhumane” interrogation techniques, but restricted its application to interrogations that occurred “on or after December 30, 2005.”2 The Military Commission Act of 2006 (MCA) adopted the DTA’s guidance, and thus codified the less stringent test for admissibility of statements taken prior to December 30, 2005.3
Under the MCA, “a statement of the accused that is otherwise admissible shall not be excluded from trial by military judge on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 984r.” This section pertains to confessions made before December 30, 2005. In such cases prosecutors need only demonstrate “the circumstances render the statement reliable, possessing of sufficient probative value [so that] the interests of justice would best be served by admission of the statement into evidence.”4 Thus, commission exclusionary rules do not regard “cruel, unusual, or inhumane” mistreatment as a basis to preclude the admission of statements taken prior to December 30, 2005. In effect, military commissions were directed to apply two separate “voluntariness” tests — one that comported with well-settled law and another that disregarded it.5 In the face of this conundrum, one military judge arguably chose his own way, and disregarded the text of the MCA in favor of the Uniform Code of Military Justice (UCMJ) and its notions of justice.6
A Case for Justice
Military Commission Judge Stephen Henley is, as they say, a man before his time. Over the last year, he has presided over the landmark case of United States v. Mohammed Jawad.
On or about December 18, 2002, in Kabul, Afghanistan, Jawad allegedly threw a grenade into a vehicle, which seriously injured two U.S. soldiers and a translator. He was subsequently transported to an Afghan police station for questioning. Jawad, at the time under the age of 18, appeared to be under the influence of drugs. He initially denied throwing the grenade, but relented after armed Afghan police threatened to kill him and his family if he did not confess.
Several hours later, Jawad was taken into U.S. custody and transported to a “Forward Operating Base,” where U.S. interrogators awaited him. When confronted, Jawad initially denied any wrongdoing, but later confessed to a U.S. interrogator, admitting to “rolling a grenade under the American’s vehicle and walking away as it exploded.”
A military defense counsel subsequently sought to suppress both confessions, arguing that Jawad’s right against compelled self-incrimination had been repeatedly violated.7
In October 2008, Judge Henley suppressed Jawad’s confession to Afghan officials. Military Commission Rule of Evidence 304 (MCRE) defines “torture” as “the intentional infliction or threatened infliction of severe physical pain or suffering … [including] the threat that another person will imminently be subjected to death, severe physical pain or suffering.”8 Here, the military commission found the Afghan death threats “credible” evidence of torture, which, by definition, “shall not be admitted into evidence against any party or witness.”9 While Judge Henley’s ruling was significant, it pales in comparison to what he did next.
In November 2008, Judge Henley ruled that the second confession had been “presumptively tainted” by the prior death threats made by Afghan police. He further held prosecutors failed to demonstrate that “intervening circumstances” sufficiently “dissipated” the effect of the prior threats. Even though the MCA fails to recognize the “derivative” evidence doctrine as a potential basis of suppression, the court found it.10
Judge Henley found the “totality of the circumstances” reinforced the “shock and fearful state” Jawad suffered while in Afghan custody. The court highlighted Jawad’s young age and education, his lack of sleep, and his being under the influence of drugs.11 Within this context, according to court records, Jawad was “brought into a dark room while he was hooded and blindfolded and his hands were cuffed, with two American interrogators and local interpreters yelling at him in loud voices while he was in the prone position.”12 He was also told to hold a water bottle tightly with both hands, causing the young man to fear he was holding a bomb that was set to explode at any moment. Apparently these interrogation tactics were videotaped, but this evidence was subsequently lost.
Securing Justice from Within The Military Commission System
Once President Obama lifts the stay upon the military
commissions, defense counsel, strengthened in their resolve, should move to exclude coerced statements taken before December 30, 2005, on three grounds: 1) unfair prejudice; 2) unreliability; and 3) tainted derivative evidence.13
By application of MCRE 101(b)(2) military commission judges are “accorded a wide discretion in determining the admissibility of evidence under the federal rules.”14 Under MCRE 403, courts may exclude evidence that is “outweighed by the dangers of unfair prejudice.” These dangers typically “shock the conscience” and prevent fair trials.15 It can never be in the “best interests of justice” to permit prejudicial evidence, directly derived by repugnant interrogation tactics, to be considered by a jury. Indeed, respect for the law demands that we be reminded “… ours is an accusatorial and not an inquisitorial system.”16
Statements also may be excluded if judged “unreliable.” In making this reliability determination, “the military judge may consider … whether other evidence tends to corroborate or bring into question the reliability of the proffered statement.”17 By illustration, in civilian prosecutions federal prosecutors are required to provide “substantial independent evidence to support the trustworthiness of a confession.”18Similarly, in courts-martial, corroboration is required to raise an “inference of truth of the essential facts admitted.”19
Finally, according to the UCMJ, and Judge Henley’s learned interpretation of it, prosecutors must satisfy two tests by a preponderance of the evidence or risk having “derivative” evidence suppressed following a coerced confession. They must prove that any subsequent statement was itself “voluntary.” Thereafter, they must show the additional evidence was either “independent” of the tortured statement or subject to the “inevitable discovery doctrine.”20
As in all the courtrooms that populate our towns and cities, certain truths are “self-evident.” Coerced statements can never support a system of justice. President Obama’s concerted efforts at salvaging justice, starting with his official rebuke of coerced confessions, breathes new life (and potential legitimacy) into the military commission process — so much so that he may potentially reinvigorate the military commissions and the path that at least one military commission judge has long embarked on … justice.
Stephen Carpenter, Jr. is a former JAG lawyer who currently practices criminal law in military and civilian courts located in Washington and worldwide. Carpenter appeared before Judge Henley on a frequent basis while serving as a prosecutor and trial defense counsel in Wiesbaden, Germany.
1 Executive Order, Section 3(a), “Ensuring Lawful Interrogations,” January 23, 2009.
2 MCA permits military commission judges to admit a confession, taken on or after December 30, 2005, if: “(A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.” MCRE 304(b)(3) (emphasis added).
3 10 U.S.C. § 948.
4 MCRE 304(c)(1).
5 In courts-martial, a statement is inadmissible “if it is obtained … through use of coercion, unlawful influence or unlawful inducement.” MRE 304. Likewise, in federal civilian prosecutions “a confession … shall [only] be admissible in evidence if it is voluntarily given.” FRE 801(D)(2)(A).
6 The Government has filed an interlocutory appeal challenging Judge Henley’s suppression of the second confession to U.S. interrogators. Notably, the Government claims “the accused was not mistreated; the interrogation was by a [U.S.] trained interrogator using text book techniques.” Indeed, arguably, it is any wonder such a conclusion is proffered considering “cruel, inhuman and degrading” treatment does not, by the express wording in the MCA, constitute mistreatment.
7 Notably the DTA acknowledges that the “meaning” of “cruel, unusual and inhumane treatment” applicable to detainees is based, in part, on the Fifth, Eight and Fourteenth Amendments to the Constitution of the United States.
8 MCRE 304(b)(3).
9 MCRE 304(a)(1).
10 UCMJ, Military Rule of Evidence 304 (evidence that is challenged as derivative may only be admitted if found to have been made by the accused voluntarily).
11 Judge Henley found “no break in the stream of events from the Accused’s initial apprehension and interrogation by Afghan police to the second confession.” Jawad was not tortured by his U.S. interrogator; he was subjected to coercive tactics that, when coupled with the prior torturous acts of the Afghans, made Jawad’s second confession involuntary, and therefore inadmissible.
12 Defense counsel appellate brief.
13 MCRE 304(d)(1) requires the prosecution to disclose all known confessions and admissions at the arraignment of the accused. The defense can thereafter conduct discovery as to the circumstances surrounding the taking of the confession. If classified evidence is implicated, the prosecutor must file a motion and “any materials submitted in support thereof shall … be considered by the military judge in camera and ex parte.” Classified documents that impinge upon national security issues may then be redacted or summarized by the court for use by defense counsel in accordance with the procedures outlined in MCRE 505.
14 United States v. Abel, 469 U.S. 45, 54 (1984).
15 Rochin v. California, 342 U.S. 165 (1952).
16 Rodgers v. Richmond, 365 U.S. at 540 (1961) (dissenting opinion).
17 MCRE 104(a), (b).
18 Opper v. United States, 348 U.S. 84, 99 (1954).
19 UCMJ, Military Rule of Evidence 304(g)(1).
20 UCMJ, Military Rule of Evidence 304(b)(3).
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