Yesterday's agreement between the White House and Senators McCain, Warner, and Graham turns out to extend also to the lingering disputes among them concerning military commission evidentiary rules. The text of this portion of the agreement is here. It provides, in brief:
1. Protection of Classified Information
The White House has given up its insistence upon a provision permitting the introduction of classified information outside the presence of the accused. Instead, the compromise language contains various CIPA-like provisions pursuant to which the judge may authorize redactions or the use of summary substitutions. In considering whether the "national security privilege" applies in the first place, the judge has the option of conducting an in camera, ex parte review. The compromise also requires the government to provide detainees with "adequate substitutes" for classified but exculpatory information.
2. Admissibility of Coerced Statements
A three-tiered approach.
First, statements obtained by "torture" are inadmissible.
Second, statements obtained prior to enactment of the McCain Amendment in late 2005 "in which the degree of coercion is disputed" (i.e., in which the detainee claims coercion falling short of torture) may be admitted upon the judge's determination that (i) in the "totality of the circumstances" the statement is reliable and has "sufficient probative value" and (ii) admission would serve the "interests of justice."
Third, the same test applies to coerced (but not torture-induced) statements that post-date the MCain Amendment, except that the government also must show that the method used to extract the statement did not violate the shocks-the-conscience, due-process standard. Including that test here but not in the second category implies, of course, that the conscience-shocking standard would not be part of the analysis in that second category.
3. Hearsay
Evidence that would be excluded as hearsay if presented in a court-martial proceeding is admissible in a commission proceeding, unless "the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value." This functions like a reverse version of FRE 807, the catch-all hearsay exception: hearsay is admissible unless the opponent can prove lack of reliability (or relevance). Note that if the detainees at GTMO prevail in their attempt to claim constitutional rights of at least some description, one question that will follow is whether they have 6th Amendment Confrontation Clause rights. If so, this hearsay rule presumably will have to give way in at least some circumstances.
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