One last point to Phil. France uses the inquisitorial system of criminal justice: no jury, greatly relaxed rules of evidence, including the absence of a hearsay rule. (There is no need to worry about confusing the jurors or animating their biases—the usual reason for having such rules in the jury system used in the United States.) Without a jury present, classified evidence poses less of a problem. And given the relaxed rules of evidence, I suspect, but don’t know for sure, that these judges would be permitted to base their decisions on evidence where the degree of coercion used to obtain that evidence is “disputed” (in the words of the Military Commissions Act, though not when the evidence is obtained through torture, which is forbidden under international law, but which is also forbidden under the Military Commissions Act). Finally, French civilian judges have less independence than American civilian judges, though it is hard to know how meaningful this difference is in practice, and in the inquisitorial system, the French defense lawyer has a more muted role than in the United States. So, what are we to make of the French example? That we give terrorist defendants procedural protections that are too limited, or that we give regular criminal defendants procedural protections that are too generous?
