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Proposed Amendments to the Military Commissions Act: (1) Admissibility of Confessions

by Professor Will Huhn on July 28, 2009

in Constitutional Law,Wilson Huhn

     It was big news last week when the Senate stripped funding for the F-22 from the 2010 Military Appropriations Bill.  Lost in the shuffle is that fact that the same bill makes important modifications to the Military Commissions Act in order to bring the law into conformity with our treaty obligations under the Geneva Conventions.  The first post on this subject deals with the admissibility of confessions.

     In 2006 in the case of Hamdan v. Rumsfeld the United States Supreme Court ruled that the military commissions trying suspected terrorists for war crimes were unlawful under the Geneva Convention.  Common Article 3 of the Geneva Conventions prohibits:

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

      In the 2010 military appropriations bill that was recently adopted by the Senate (S. 1390), a number of changes were made to the Military Commissions Act (10 U.S.C. 948a et seq.) to bring it into conformity with our treaty obligations.  Today's post describes the change that the law makes to the admissibility of confessions.

     Section 1031 of S. 1390 includes the following provision:

Sec. 948r. Compulsory self-incrimination prohibited; statements obtained by torture or cruel, inhuman, or degrading treatment

`(a) In General- No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

`(b) Statements Obtained by Torture- A statement obtained by use of torture, whether or not under color of law, shall not be admissible in a trial by military commission under this chapter, except against a person accused of torture as evidence the statement was made.

`(c) Statements Obtained Through Cruel, Inhuman, or Degrading Treatment- A statement in which the degree of coercion is disputed may be admissible in a trial by military commission under this chapter only if the military judge finds that–

`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

`(2) the interests of justice would best be served by admission of the statement into evidence; and

`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd).

     The Detainee Treatment Act provides as follows:

the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.

     So what's the bottom line?  Basically, confessions that are obtained through the use of torture or cruel, inhuman, or degrading treatment are not admissible at all.  If methods of interrogation are used which do not amount to "cruel, inhuman, or degrading treatment," but which are nevertheless "coercive," then the military commission must take into account the "totality of the circumstances" in determining whether or not the statement is "reliable," "probative," and whether its admission "serves the interests of justice."

     There are still some difficulties in interpreting the precise meaning of the language of the statute; specifically, it is still not clear whether a confession which is "involuntary" is admissible even though the interrogation methods do not rise to the level of "cruel, inhuman, or degrading treatment."  Other provisions of the law make it clear that prisoners are not entitled to Miranda warnings, but there it is still ambiguous whether confessions will be admissible before the military commissions if they are "involuntary."  During testimony before the Armed Services Committee there was a debate among the witnesses concerning whether the Military Commissions and the courts would have to determine the "voluntariness" of a confession in determining its admissibility.  On the one hand, the law as written only requires consideration of the statement's reliability, probativeness, and justice – on the other hand, the statute may be read as meaning that these factors are considered for the purpose of determining the extent to which the statement was "coercive," that is, "involuntary."  The Congress may choose to clarify this point before the bill is enacted, or it may choose to leave this issue up to the courts.

     Tomorrow I will address two other changes made by S. 1389 to the Military Commissions Act with respect to two rules regarding the admissibility of evidence – the relevancy rule and the hearsay rule.

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