More on Terror Tribunals

Slate's blog on legal issues.
March 21 2008 2:25 PM

More on Terror Tribunals

[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily , that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver "clean" convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.

/blogs/convictions/2008/03/21/more_on_terror_tribunals/jcr:content/body/slate_image

The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla's case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants' initial interrogation. So while I agree with you that this country shouldn't "be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony," that doesn't seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one's criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn't—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier , have grave anxieties about execution in these cases for other reasons).

Advertisement

That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don't think we'll know until trials actually happen how fair or unfair the system really is.

The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don't generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I'm grateful for Emily's kind words), I'm inclined to view trials under it as warranting at least that level of confidence.

TODAY IN SLATE

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Weigel
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
  Business
Moneybox
Sept. 19 2014 6:35 PM Pabst Blue Ribbon is Being Sold to the Russians, Was So Over Anyway
  Life
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.