Former Insider Shatters Credibility of Military Commissions, Describes Brutal Treatment of Teenage Detainee
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In addition, after noting that the prohibition on the use of coerced statements exists because of “moral repugnance,” and because they are “unreliable,” Vandeveld noted that, although in some cases, including those of the “ high-value detainees ,” coerced statements “may be corroborated by evidence that would be admissible,” for many other prisoners the decision to proceed with coerced statements is desperately unsound:
Disallowing evidence obtained through coercion would result in the evisceration of many of the cases that might otherwise, on the most tenuous of theories, have been prosecuted. Instead of recognizing this sad reality and resettling or repatriating those prisoners against whom the government has insufficient and tainted evidence, the present legislation, in effect, opts to continue the charade.
For similar reasons, Vandeveld then dismissed the use of information obtained through hearsay, disputing Sen. Carl Levin’s explanation , during the Senate Committee hearing on Tuesday, that the Committee’s revisions ought to be acceptable because they were designed to “eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative.”
He also took exception to President Obama’s claims that the use of hearsay “would be consistent with international standards, such as those employed in international criminal tribunals,” because, he said, the President’s opinion failed to take into account that judges in those cases are “qualified to consider hearsay and determine its value,” whereas the “lay jurors” in the Commissions -- whose role would essentially be the same in any system revised by Obama -- are not.
The problems with the gathering and handling of evidence
Moving on to the “gathering and handling of evidence,” Vandeveld noted that the Commissions suffered from “enormous problems,” primarily because, unlike “the investigations and case files assembled by military or civilian police agencies and prosecution offices,” the Commissions had -- and will continue to have -- “no central repository for case files, no method for cataloguing and storing physical evidence, nor any other system for assembling a potential case into a readily intelligible format that is the sine qua non of a successful prosecution.”
This is damning enough, but, citing his experience with Jawad, Vandeveld also explained why the case files were so chaotic. “The obvious reason behind the shoddy preparation of evidence against Mr. Jawad,” he said, “is that it was not gathered in anticipation of any semblance of a ‘real’ trial.” He added:
With the government setting an extremely low evidentiary bar for continued detention without charge, with the focus on extracting information through coercive interrogations rather than on prosecution, and with the understanding that any trials will forego fundamental due process protections, there is little incentive for investigators to engage in the type of careful, systematic gathering of evidence that one would find in a typical civilian trial.
Allied to this particular problem, which, it is clear, can only be addressed adequately by dropping cases in which “the government has insufficient and tainted evidence,” and putting the rest into federal courts, where this type of systemic evasion will be impossible, are what Vandeveld referred to as “the excessive restrictions on the disclosure of classified or sensitive evidence to defense counsel.”
This, again, is clearly part of the very architecture of the Commissions, designed, in an essentially lawless manner, to prevent any obstacles to prosecution, and as Vandeveld spelled out, in practice the almost obsessive focus on secrecy serves only to discredit the entire process. Unmoved by Sen. Levin’s unsubstantiated claim that the Committee’s revisions will “eliminate the unique procedures and requirements which have hampered the ability of defense teams to obtain information and led to so much litigation,” he described a process in which secrecy (to the detriment of the defense) was absolutely central, and made it clear that he found it inconceivable that the necessary changes were even remotely feasible.