In the detainee trials at Guatanamo, however, hearsay is admissible, and so defense counsel wants access to the original notes.

No, no, no. Even in regular U.S. criminal trials, there are exceptions to the hearsay rule that permit hearsay to serve as substantive evidence in some circumstances. (What those are basically takes a full law school course to teach.) In these commission trials, there will be further relaxation of the hearsay rule. But that emphatically does not mean that "all hearsay is admissible"!

Instead, on quite literally a question-by-question, document-by-document basis, the presiding judge will have to decide whether there are sufficient indicia of trustworthiness to make the probative value of the evidence overcome the unreliability associated with its hearsay character (i.e., the fact that the statement was made out of court and without its maker being subject to hostile cross-examination at the time it was made).

And as I explained earlier, the only way that these notes could ever potentially become relevant anyway is not as substantive evidence on their own, but as potential impeachment — if but only if there has first been a predicate laid to show that there's a genuine dispute between the testimony of the accused and the investigators over what happened during the interrogations. Using a document or other testimony for impeachment is considered a "non-hearsay use" because the evidence is not being offered to show the truth the proposition that was asserted outside the courtroom, but rather, the mere fact that such an assertion was made; and its relevance is that it's a statement inconsistent with what's currently being said in court.

I don't fault non-lawyers for failing to grasp this. Typically a quarter of law students who've actually passed their evidence courses never actually understand the definition of hearsay, much less its exceptions. It's embarrassing how frequently I even see lawyers in the courtroom who don't understand these basic rules.

But it's the legally unsophisticated that defense lawyer Kuebler is playing to here. That's why he's making his pitch in emails to reporters. And he's succeeding in fooling them, and — unfortunately — you, Alex. They and you should be more credulous. The court certainly will be.

Some circumspection before accusing people of criminal behavior based upon a data point might prove beneficial. Saying sorry afterwards isn't quite the same as never having made the accusation. Asking if such behavior is criminal is not the same as racking your brain to imagine a scenario where they weren't acting criminally. The former is legitimate, the latter makes you sound like Vizzini saying "inconceivable" in The Princess Bride.

The Bush Administrations central premise is that they can invade any country that is complacent with the “enemy” (as defined by the President). This is extended by classifying anybody who resists US actions, not wearing a military uniform, as a terrorist. A.K.A. “unlawful enemy combatant”

To reduce these proceedings to the absurd: Had Mr. Omar Khadr been wearing the uniform of the Afghanistan Army (no such entity existed at that time), no trial would be taking place. To emphasize this point, there are no prisoner of war camp, Gitmo holds only war criminals.

The Bush Administration has labored longs and hard to validate these trials. Attempts to compare them to the Nuremberg Proceedings fall flat when examined. Slice it, dice it, mold it, spin it, few would call these trials a valid expression of the American Justice System.

What has happened is not what the architects of Gitmo desired. The JAG officer corps did not cave to the Administration view of justice. We all of them a debt of gratitude…

In my blackboard in the sky, Alex Knapp rates an A for his concerns. James Joyner gets a B+ in obfuscation, surely he does not believe that a highly classified document (see his Denniston) link “…were written by a relatively low level soldier…” We know that on hand the CIA did much of the interviewing, while on the other hand, the FBI refused to comply with some of the interrogation proceedings.

Beldar’s comments are appreciated, well stated and to the point. He gets a lawyerly A. But, I quibble with his statement:

“Why you think these defendants, who by Congressional decision are not entitled to the full scope of protection that regular criminal defendants get in the U.S., should actually get better treatment, I simply don't understand. I suspect it's because you don't really understand the details (at this level, anyway) of what's normal and what's not in the regular criminal justice system, and you're therefore just swallowing whole, uncritically, every argument being thrown against the wall by defense counsel like Kuebler.”

Surely he does not believe that we can stand as a model for democracy, when we say our system of justice is best, but it is only reserved for our citizens. The issue is not whether notes are admissible, the issue is trying an individual, age 16 at the times of the alleged act, for a capital offense, when the whole world is grappling with the issue of “child soldiers”.

Bithead, on the big blackboard in the sky gets an A+ for brevity. To which the gathered multitude, fingering pray beads, murmur their thanks…

But the supposition of guilt and malfeasance is a good starting point. Or is it?

The original article I linked to did not mention the formal notes/report aspect of the situation and implied that the notes were to be destroyed, period. Please note that I pulled back in my judgment upon hearing more evidence.

I am racking my brain to come up with a reason to destroy interrogation notes that doesn’t involve covering up evidence of a crime, but am so far coming up short.

But the supposition of guilt and malfeasance is a good starting point. Or is it?

(1) The operations manual apparently only orders the destruction of the handwritten notes after the creation of formalized typed notes or a formal intelligence report.

(2) Under normal circumstances, that type of procedure would probably be acceptable, and there’s not too much to object to there.

Guilty, until proved innocent.

If instead — as I very, very, very strongly suspect — the "torture" or "coercion" used to "extract" Kuebler's client's confession(s) weren't much different (even as told by his own client) from what happens at the average urban American police station day in and day out, then the confession(s) probably won't be surpressed.

There are also other considerations, at your average American police station you must be informed of your rights (and you have rights), you have some basic knowledge of the law that you are being held under.

For example, if a cop at an average American police station threatened to waterboard a drug-dealer unless he confessed, he's likely to know that the cop can't legally do that. Khadr wouldn't likely know that, heck we're not even sure if his interrogators actually could legally do that. Your average convict in the US likely knows that he will be given a trial, that he will have access to unbiased counsel to help him at trial, that the prosecutors will need to provide reasonable evidence against him, and that he is presumed innocent until proven guilty.

Khadr likely didn't know any of those things, so there's no way that his interrogation could be called anything like a typical interrogation in an average US police department, even if the actions of the officers was similar. Cops like to bluff, saying things like "I'll make sure you get the chair" may not be uncommon in an American police station, but the accused still knows that it's not in that cop's immediate power to follow through on those threats. Again, Khadr wouldn't know that. If his interrogators told him they would make sure he gets executed unless he confessed, he'd probably take them at their word.

I would think that if the accused says his confession was coerced, and that he does not agree that it is a true and honest confession, that a reasonable judge would either throw it out, or require that the prosecutors prove that it is valid.

The law is otherwise. It's not, and shouldn't be, easy to "take back" a confession.

At trial, the prosecution has the burden of proof. If the prosecution is trying to meet that burden using a confession by the accused, the prosecution must "prove up" the confession, i.e., present admissible evidence of what was said by the accused. When the confession is a written one, that's typically done by eye-witness testimony of someone who witnesses the accused sign the document. If there's no written confession but only an oral one, then the eye-witness is going to have to also supply the substantive details of what was said by the accused.

Even though evidence of the confession has been admitted, it's not necessarily conclusive. The accused can still argue to the fact-finder (typically a jury) that the confession is unpersuasive for one reason or another, and that it still leaves them with a reasonable doubt. Typically, the defendant takes the stand and tells his story: He was hungry. He was distracted. His grandmother broker her hip. He thought they were only joking. They were mean to him. The mattress in his cell was very lumpy. Whatever. Sometimes this works -- maybe one time in 50.

Oftentimes defense lawyers want to get confessions thrown out before trial, however. Typically that's because their clients have prior criminal convictions. Once they take the stand to dispute the voluntariness of their confession, they become subject to impeachment. Suddenly, those prior convictions -- which weren't relevant for any other purpose, and which the prosecution therefore couldn't talk about -- can now be used to impeach the defendant's overall credibility. So the jury hears that, aha, the defendant is a six-time loser who's been in trouble with the law virtually forever, and at that point they stop believing anything he has to say.

To avoid that, defense counsel may file a motion to suppress the conviction before trial. They can call their client to the stand at the evidentiary hearing on the confession suppression without waiving their right to keep him off the stand in front of the jury, so all those prior convictions aren't so harmful. If they can persuade the judge that the confession was involuntary, he may make a pretrial ruling suppressing it.

At such pretrial hearings, it's the defendant who has the burden of proof. He's asking for something extraordinary -- to prevent the fact-finder from ever even hearing about the confession. If he succeeds, then the prosecution knows it has to make its case, meet its burden of proof, without reliance on the confession. Sometimes there's not enough other evidence to go forward, so such hearings effectively result in the case being dismissed outright.

But ordinarily, sane people don't admit to criminal acts when they haven't actually committed the crime. And by contrast, all sorts of people -- sane people, rational people, hopeful people, people under no particular stress other than their own consciences -- confess their crimes freely under questioning. An overwhelming majority of the people currently behind bars -- even for the most serious crimes, including capital crimes -- were put mainly their by their own confessions (which typically resulted from, or else in, plea bargains).

The standard for suppressing a confession is very, very high even in ordinary criminal practice. Courts look to the totality of the circumstances to decide whether a confession was voluntary or coerced, which in turn depends upon whether the accused's free will was "overborne" by the circumstances surrounding the confession. Mere stress -- like the stress of being under arrest, in custody in an uncomfortable facility, and facing severe penalties -- doesn't cut it. Being advised of the potential consequences of a conviction doesn't amount to an impermissible threat. Being offered a lighter deal -- so long as the promise is in fact kept -- doesn't count as "coercion" either.

Only a very small percentage of these evidentiary hearings result in confessions being suppressed even in regular criminal proceedings. I'm confident it's less than one in ten; it's probably less than one in twenty.

So: If Kuebler shows that this guy's only confession came in exchange for the cessation of him being actively waterboarded, then yeah, he's got a pretty good chance of getting his motion granted. If instead — as I very, very, very strongly suspect — the "torture" or "coercion" used to "extract" Kuebler's client's confession(s) weren't much different (even as told by his own client) from what happens at the average urban American police station day in and day out, then the confession(s) probably won't be surpressed. Kuebler can still argue their unreliability to the jury, but most juries don't buy those arguments either; and he may not have the prior convictions disincentive to putting his client on the witness stand. (There may be other reasons, though, why he won't want to do that -- e.g., the likelihood that his client will start chanting "Death to America!" in response to cross-examination.)

I consider the "Pentagon Orders Evidence Destroyed" headline (or words to that effect) to be a red herring. It's smacks of political propaganda in an election year rather than legal fact. At least in the most famous case known to me, the interrogation notes were not admissible in court.