Posted Tuesday, June 24, 2008, at 12:11 PM
Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.
Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as "likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified." Let's take this in two steps. First, the "classified" part isn't obviously a problem for judges. Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the federal law passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that.
As for the nature of the evidence itself, I don't know anyone — military or civilian — who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible. Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited. But the claim that deciding how to handle hearsay evidence of dubious reliability is unfamiliar to Article III judges? Guess we must have had different profs for criminal procedure.