Pre-trial motions earlier this week in the USS Cole case addressed the most controversial aspect of the Guantanamo war crimes tribunals - the admission of hearsay evidence.
“The right to cross-examination is the greatest engine to determine the truth in the trial process,” said Richard Kammen, lead defense attorney for Guantanamo detainee Abd al-Rahim al-Nashiri.
Hearsay evidence is second-hand testimony that is largely inadmissible in federal criminal court cases, which is the biggest difference between the Guantanamo military commission war crimes tribunals and federal cases against American citizens.
Nashiri, accused of orchestrating the USS Cole attack in 2000 off the coast of Yemen, is being charged with war crimes. The attack killed 17 U.S. sailors and wounded many more.
The admissibility of hearsay evidence has been a hotly-contested theme of the military commissions since their inception, said David Frakt, a military attorney and legal scholar who has previously represented Guantanamo detainees.
“One of the reasons you don’t want to allow hearsay evidence is that you want to bring in the real source and allow both parties to question someone,” he said. “When something is second-hand, there’s no way to do that.”
Kammen asked the judge “to rule very narrowly but specifically that the right of confrontation applies as guaranteed by the Sixth Amendment.”
In federal criminal trials, the constitution affords those accused of crimes the right to confrontation, or cross-examination.
The application of the constitution to Guantanamo detainees is sometimes ambiguous, Frakt said.
He added that Nashiri’s defense team is raising the issue because it thinks the prosecution will use the slightly more permissible rules allowed by the military commissions to include second-hand testimonies with unknown original sources.
The main evidence that will be used to determine if Nashiri was involved in the USS Cole attack, and to what degree, is “all hearsay,” said Kammen.
Some of the evidence might contain testimonies from Yemenis who were detained in detention facilities for months before being interviewed, he added.
The prosecution also seeks to bar Nashiri from hearing classified evidence against him, even if it deals with his documented torture.
However, the prosecution has “evidence that’s highly corroborated,” said Mark Martins, the chief prosecutor of military commissions.
The assertion by the defense that the government is acting unconstitutionally is unwarranted, he added.
The government uses the original sourcing of all second-hand testimony, and actively seeks out the original authors, the prosecution said.
Critics of the admission of hearsay evidence “live in a world that’s completely divorced from the rule itself,” said Cully Stimson, former deputy assistant secretary of defense for detainee affairs.
In federal court, “there are dozens and dozens of exceptions that allow in statements by third parties that aren’t present,” he said.
The defense can also use hearsay evidence, and it is up to the judges to rule on its reliability, Stimson added.
“Judges have ruled against the government repeatedly, so it’s not a rubber stamp,” he said, adding that the Guantanamo judges have been very fair.
The underlying issue for critics, he said, is that they are really against military commissions.
“It’s a perfectly legitimate policy desire for these cases to go to federal court, but don’t dress up your policy preference as a legal objection,” Stimson said.
Colonel Morris Davis, a former Guantanamo detainee prosecutor, described the military commissions system as second-rate.
The difference between military commission trials and the standards applied to U.S. citizens “says more about what we did to some of the detainees while they were in our custody, than it does about what they did to us,” Davis said.
A 2004 CIA document reveals that Nashiri was subjected to water-boarding and put in stress positions. Interrogators also racked an unloaded semi-automatic handgun near his head, and revved a power drill near him while he was hooded and naked, the document said.
The military commission system exists largely because the administration of George W. Bush believed it was easier to get convictions within this system, Frakt said.
“Much of the evidence available was obtained through coercion and hearsay evidence, and so wouldn’t be admissible in a federal court,” Frakt said.
“The military commissions only exist because they’re unfair,” he added. “That’s why they were created.”
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