Military Interrogators Urged to Destroy Evidence

Lt. Cmdr. William Kuebler, who is serving as the defense attorney for Canadian citizen Omar Khadr’s war crimes trial (previously discussed on OTB here) has divulged that the Pentagon has been urging interrogators in Guantanamo Bay to destroy all of their notes regarding their interrogation of detainees.

The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

Kuebler said the apparent destruction of evidence prevents him from challenging the reliability of any alleged confessions.

[…]

The case against Khadr, who was captured in Afghanistan when he was 15, is on track to be one of the first to trial. He faces war-crimes charges including murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier during a 2002 firefight.

Kuebler said the nature of the interrogations is particularly relevant in Khadr’s case because prosecutors are relying on evidence “extracted” from him at Bagram air base in Afghanistan and at Guantanamo.

“If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar’s lawyers of key evidence with which to challenge the reliability of his statements,” Kuebler said in an e-mail to reporters. [emphasis added]

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. Using torture and other coercive interrogation techniques to extract confessions is not only morally outrageous, but history has shown time and time again that the typical results are false confessions. I hope that Lt. Cmdr. Kuebler is successful in fighting this and gets the charges dismissed.

UPDATE (James Joyner): Alex has asked me to weigh in, based on my military background, about the nature of manuals, SOPs, and the like. Specifically: Who writes them? Who approves them? How do soldiers view them?

This depends largely on the type of document. Field Manuals, training manuals, and similar publications prepared for widespread dissemination — the entire DoD, one of the Services (Army, Navy, Air Force, Marines), or even an occupational specialty (Infantry, Military Police, etc.) — are typically written by a team of people supervised by someone of middle management rank (a field grade officer or civilian equivalent). Presumably, those that address matters pertaining to the Joint Staff and the like are staffed and approved at higher levels. They’re approved higher up the food chain but seldom at the level of political policy-maker. They’re taken rather seriously by the troops but generally don’t have enforcement provisions.

In this particular case, we’re talking about a much lower-level publication. Specifically, as the affidavit (PDF link provided by Lyle Denniston, who has some interesting thoughts on the legal matters Alex discusses above) makes clear, we’re talking about an organizational SOP. Specifically, a “Tiger Team SOP” with limited scope: “These procedures and responsibilities apply to Tiger Teams serving within the Interrogation Control Element (ICE), Joint Interrogation Group (JIG) of Joint Task Force (JTF) GTMO.”

Most likely, these were written by a relatively low level soldier — perhaps a senior NCO or company grade officer (I wrote these kinds of things as a 2nd Lieutenant) and approved by the JTF commander or perhaps his operations officer. Once promulgated, the members of the Tiger Teams would have felt obligated to carry them out unless they had strong moral objection or thought they were doing something illegal. Most personnel would take specific instructions in an organizational SOP as the equivalent of a written order from the commander.

Joint Task Force (JTF) GTMO, incidentally, is commanded by a one-star rear admiral.

Update (Alex Knapp)

Now that I’ve delved a little more deeply into this, a few more things have come to light.

(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.

(3) The key words, though, are “under normal circumstances.” The Defense counsel in this case are making the argument that the handwritten notes should be preserved in order to impeach hearsay testimony. In a normal court of law, of course, this would not be necessary because hearsay is typically inadmissible (although there are exceptions). In the detainee trials at Guatanamo, however, hearsay is admissible, and so defense counsel wants access to the original notes.

As a policy matter, I would prefer that these notes be kept for detainee hearings. This is because I generally favor a maximum amount of transparency when it comes to prisoner interrogations in any setting. Indeed, if it were up to me, every interrogation in the criminal justice system would be videotaped (as is the law already in a handful of states). That said, from the standpoint of the current law, there may not be anything illegal in what has been ordered. And given that the handwritten notes are replaced with formal notes and/or reports, the taint of coverup in the initial reports is markedly diminished.

However, these issues only serve to further illustrate the legal frustrations that have shadowed the Guantanamo Bay detentions ever since 2001. Given that in the “War on Terror” we are not necessarily engaged in hostile military actions against governments, and that the duration of the “War” is pretty much indefinite–there’s always going to be “terror groups” out there, so it’s not like we can pretend we’re just holding them for the duration of hostilities–the need for a more reliable legal process is a necessity. But neither the Administration, Congress, or the Courts seems to be in much of a hurry to do so. The lack of proper procedures, the treatment of detainees, and the insistence on secrecy have cost us moral authority and prestige. Not to mention that our actions have only served to distance us from valued allies (Khadr, for example, is a Canadian citizen) while at the same time serving as convenient propagada for al-Qaeda and other guerilla outfits.

I do not necessarily subscribe to the view that the detainees in Guantanamo and other U.S. controlled foreign prisons need to tried in civilian courts in the U.S. But there does need to be fair, transparent procedures in place to protect the rights of those detainees. Transparency of the interrogation process and eliminating the use of hearsay in legal proceedings would be a good start.

FILED UNDER: Intelligence, Law and the Courts, Military Affairs, , , , , , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. joe says:

    There are so many problems with this issue. Legally it’s wrong, and changing the law so that the government can continue its operations is unconstitutional. Morally it’s wrong as well as embarrassing for the world to see us act in this fashion. We’ve wasted our moral and legal authority on this planet with abuses such as these.

  2. Dave Schuler says:

    has divulged that the Pentagon has been urging interrogators in Guantanamo Bay to destroy all of their notes

    It would be most interesting to know who “the Pentagon” is in this instance and whether it goes all the way up the chain of command.

  3. Alex Knapp says:

    It would be most interesting to know who “the Pentagon” is in this instance and whether it goes all the way up the chain of command.

    I’m curious to know, myself. I don’t know who writes operations manuals or if they count as orders (which is why I accepted ABC’s parlance of “urge”, while other news outlets have used the term “order”).

  4. Steve Plunk says:

    A simple explanation would be they destroyed the notes to keep the treatment from becoming the issue rather than the charges themselves. Side shows in trials can waste valuable time and we all know justice delayed is justice denied.

    It is important to note these are allegations of something seen in a manual. I’m sure if the defense counsel brought this before the judge a legal finding would be made. But why do that when we can throw out our own amateur legal rulings based upon rumors.

    Why would Kuebler bring this to ABC instead of the court?

  5. Bithead says:

    I’m with Plunk, here.
    And the answer to Plunk’s question, given we’re dealing with an eletion year, of course is ‘yes’.

  6. c. wagener says:

    I’m also racking my brain Alex. I’m trying to figure why a person captured on a battle field is entitled to a trial.

    “My client allegedly shot … threw a grenade”. This is a war not a holdup at a convenience store. If we captured 10,000 people in a single battle would we need to establish evidence for each one? “Dude I was headed to my grandma’s house and I was just holding the RPG for a guy that was taking a piss”.

  7. Alex Knapp says:

    Steve,

    It is important to note these are allegations of something seen in a manual. I’m sure if the defense counsel brought this before the judge a legal finding would be made.

    He has brought it before a judge, actually.

    C.,

    This is a war not a holdup at a convenience store. If we captured 10,000 people in a single battle would we need to establish evidence for each one?

    This is not a status trial, it’s a war crimes trial. Of a 15 year old kid, I might add.

  8. Beldar says:

    Alex, let me ask you a question, because I think you’re proceeding from some mistaken premises.

    Assume I’m the lawyer for the automobile insurance company who insured the guy who ran into you from behind yesterday.

    I’m doing an interview of the pedestrian who claims to have seen the accident. I take notes during the interview, on the basis of which I’ll be advising my client (the insurance company) on such things as whether it should settle your claim, and if so, how much it should pay.

    Do you think you (or your lawyer) have the right to force me to turn my notes over to you?

    ——–

    How about if, instead of the disputed document being my notes, it’s a written statement that I typed up on my laptop, printed out, and then had the witness sign to confirm that it accurately reflected what he told me. Do you think you have the right to force me to turn that over?

    ——–

    How about if, instead of a civil justice setting, this were an American criminal justice setting. Now it’s not just a claim for personal injury and property damages. Instead, the note-taker is an assistant D.A. He’s interviewing the pedestrian bystander in trying to decide whether to pursue felony reckless endangerment charges against the driver of the car that hit you.

    Are you entitled to get the assistant D.A.’s notes?

    Are you entitled to get the statement that he typed up for the witness to sign?

  9. davod says:

    It is hard to comment without seeing the SOPs.

    It could well be something as simple as destroy notes after typing up your report.

  10. Bithead says:

    This is not a status trial, it’s a war crimes trial. Of a 15 year old kid, I might add.

    Perhaps you’d do well to review the history of America’s civil war, before scoffing at a 15 year old and the damage that could be done.

  11. Michael says:

    Beldar,
    If the witness is alleging that his testimony was coerced, and you can’t prove that there was no coercion, then would that testimony still hold up in court?

  12. Alex Knapp says:

    Beldar,

    I don’t think your analogy holds up here. This isn’t an attorney-client privilege matter–the interrogators in these cases weren’t prosecutors.

    To use your analogy, this is more akin to the defense attorney in the reckless driving charges asking for the police report of the accident, only to discover that the police report has been destroyed and the officer “doesn’t recall” the accident.

  13. Wayne says:

    Like many I would like to see more information on this. Destroying notes and/or documents is nothing unusual. We use to have to take great care and follow specific procedures when we wrote down anything in the field and then burn the writing soon afterwards. During our planning in our isolations phase, we would take down notes, made maps and all sorts of documents then once we put everything down in an official planning packet, we would burn everything else. There were so many instances where our SOP required us to destroy personal notes and not just in the field.

    Remember the military has a great concern about different forms of security.

    The interrogators once they had the official reports were probably concern about having classified information lying around. Also personal notes are for references and are not meant as an official conclusion. For example, the interrogator may write down that the person seems to be telling the truth about something but after a great deal of questioning it is obvious that he was lying. A defense attorney could bring this one memo out of a thousand up. An interrogator can’t remember every little note he has taken down especially when many notes are personal shorthand. I suspect it was done out of securities concern than anything else. I could be wrong but doubt it.

  14. Bob says:

    Gee, I’m “shocked” that the Pentagon would suggest that. This is the same advice given to every corporation – keep your files down to minimum because during discovery the defense will use everything found against you. And I’m sure this attorney would no doubt whine if a detainee’s info was somehow released. Having interrogators destroy their notes prevents the sale of them on eBay, minimizes nterrogators doing their own investigations, and yes, means the defense lawyers are going to have to only use the official notes.

    I suspect that after military personnel witness just how bad these tribunals turn out the next time a 15-year old nails a SF NCO there will be no trial. The troops learn the real deal.

  15. Beldar says:

    The answers to the questions I posed: Whether criminal or civil, the other side wouldn’t get the notes. The other side would get the signed witness statement.

    Either in criminal or civil proceedings, smart lawyers on both sides are careful to minimize the risk of privilege waivers and accidental disclosures of their work product. That’s part of their duty in the adversary system. That includes not putting in writing what doesn’t need to be written, and not keeping written documents that don’t need to be kept. If it doesn’t exist, it can’t be accidentally produced by mistake. That’s an absolutely valid reason to destroy notes — one that doesn’t have any illegal, unethical, nefarious, or even remotely improper purpose.

    There’s a huge difference between notes and a stenographic transcript. These notes, like any notes from interrogations, necessarily contain the subjective impressions of the note-taker. In this case, as in my hypothetical, the note-taker is working for one side in an adversary process. There is indeed a privilege — variously referred to as “work-product privilege” or “investigative privilege” — which protects the notes, so long as the note-taker doesn’t waive the privilege by showing the notes to outsiders.

    Police reports are entirely different. They’re prepared under a statutory obligation, and they’re always intended to become public records. Because of that, policemen are damned circumspect in what they put into them.

    Your premise is that these notes are “evidence.” They aren’t evidence. They aren’t admissible on their own.

    If the accused confessed, the notes aren’t what are going to be used to prove up the confession. The prosecution will either need an actual signed confession that the witness has adopted, or else live testimony of a witness who has first-hand knowledge, i.e., actually was present to hear the confession.

    Even in regular criminal trials in the U.S., it’s highly unlikely that these notes would be discoverable — no more than the prosecution can force the defense to turn over its’ lawyers or investigators’ notes containing their subjective impressions of what witnesses have said, what their demeanor is, how they likely can be effectively cross-examined, etc. This is just part and parcel of the adversary system.

    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. He’s doing his job as an advocate. But there’s another side to the story, a counter-argument to his arguments. The judge will presumably hear both sides, and then decide. My strong hunch is that the counter-arguments will prevail — not because the judge is crooked, but because Kuebler is wrong.

  16. Wayne says:

    Alex
    I would have to disagree with your comparison. An interrogation and a traffic accident are completely different and yes I know you didn’t start that line of comparison. First military interrogators are usually more concern with getting Intel and not building a case which you probably agree with. However a better comparison would be a detective writing down personal memos including brainstorming notes during a murder investigation. Requiring the detective to keep and hand over any notes during an investigation would be asinine. He should keep official records but that is as far as it should go.

  17. Michael says:

    If the accused confessed, the notes aren’t what are going to be used to prove up the confession. The prosecution will either need an actual signed confession that the witness has adopted, or else live testimony of a witness who has first-hand knowledge, i.e., actually was present to hear the confession.

    But if the accuses says their confession was coerced, then the notes could be used as evidence that on that count.

    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.

    If the prosecutor’s case can only be made with the inclusion of the confession of the accused, they had better be able to prove that the confession was given freely. If they can’t prove that, and the accused says it was not, then the prosecutor can make his case without the help of the confession.

  18. Michael says:

    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.

    Remember that Justice serves both the victim and the accused. Denying these defendants the principles we have established to ensure justice doesn’t actually help us any.

    If this kid didn’t throw the grenade, then locking him up won’t do anything to protect our soldiers from the guy who did. Why you seem to feel it is more important to find a party guilty, than to find the guilty party, I simply don’t understand.

  19. Beldar says:

    Let me add a bit more, about the very limited and unusual circumstances in which these notes could ever, conceivably, become “evidence”:

    Kuebler is trying to suppress other evidence (testimony of investigators or perhaps written confession(s)) by arguing that they were involuntary and produced as the result of torture. As part of that, he has to allege for this specific defendant — not some other guy — what the “coercion” or “torture” was. He knows what that is from interviewing his client, and he starts off with, at a minimum, his client’s own testimony to establish that those coercive acts happened and describe their intensity.

    It’s entirely possible that there is no dispute about those facts. If the defendant alleges that he was subjected to loud music or cold temperatures, for example, and the prosecution admits that he was, then there’s no dispute about the facts. There may be a dispute about their significance. But Kuebler doesn’t even arguably need the notes to prove up, factually, any facts to which the prosecution agrees.

    Let’s say there’s a dispute, though. Kuebler’s client alleges that the “coercion” took the form of interrogators shouting at him. When questioned before the judge at the suppression hearing, assume they deny ever raising their voices. At that point, there is a conflict about what the operative facts were.

    Potentially, there’s a chance that the investigators’ contemporaneous notes might be inconsistent with their testimony. Maybe they were stupid enough to write down, “Could extract a confession by asking nicely, so shouted at accused for several hours to overcome his willpower.” Okay, then, at that point the notes would potentially be impeachment evidence — that is, admissible for the sole purpose of showing that the investigators described things differently in the notes than they did in court.

    But has Kuebler laid any of that foundation yet, that could make these notes potentially relevant “evidence” of anything that’s in factual dispute? He’d have to do that before the judge would even consider testing, or overcoming, the prosecution’s investigative privilege.

    And if he can’t show that he would have been able to get the notes in the first place, then showing their destruction is meaningless. There’s no reason to presume that the prosecution was “covering up” by “destroying evidence” unless and until Kuebler’s first shown that there was something that was, or was likely to become, “evidence.” So far as I can tell, he hasn’t done that yet.

    Instead, he’s blowing smoke and making wild accusations of “cover-up” and “obstruction of justice.” Okay, fine, that’s what defense lawyers do. But the fact that they do that, doesn’t mean they’re right.

  20. Beldar says:

    “Could extract a confession by asking nicely, …” –> should read “Couldn’t extract a confession by asking nicely, …”

  21. William d'Inger says:

    A few years ago, Louisiana Insurance Commissioner Jim Brown was charged with fraud. It turns out they had no case against the guy but got him sent to prison anyway for lying to the FBI. He claimed the notes and transcripts of the interrogations would prove his innocence, but they were not allowed by the court. Only the final FBI report was permitted into evidence.

    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.

  22. Wayne says:

    Beldar
    Good posts. However many are still treating this like it is a typical inside the U.S. law enforcement action. It is nice to know how such actions would be carried out but we should keep in mind that isn’t a typical inside the U.S. law enforcement action.

  23. Michael says:

    Beldar,
    Are papers that would potentially describe the objectives and motives of the defendant’s jailers not usually able to be obtained by a court order? For example, couldn’t you obtain a police detective’s emails if you have probable cause to believe they contain information showing that the detective fabricated evidence?

  24. Michael says:

    Wayne,
    We’re not forgetting that, we’re just operating under the assumption that justice is the ultimate goal here, and that the US justice system is the most ideal way of achieving that goal. Are we wrong in either of those assumptions?

  25. Beldar says:

    Michael wrote:

    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.)

  26. davod says:

    I remember reading about this at the time the grenade was thrown. Didn’t they catch him in the act?

  27. Michael says:

    Ok Beldar, I’m starting to like you more and more, that was a very good post.

    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.

  28. 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.

  29. Alex Knapp says:

    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.

  30. Steve Plunk says:

    Did I hear someone say “never mind”?

  31. Our Paul says:

    Alex Knapp’s provocative post raises three key questions: Is the “War on Terror” a valid concept, and if so, are the metaphors of war proper to these proceedings? Are the Gitmo Military Commissions a valid expression of justice? To what extent is politics and ideology contaminating these proceedings?

    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…

  32. Wayne says:

    Alex
    Now that most of us have gotten past that it is obviously a cover-up which I suspected all along. Philosophically I agree with much of your intent. Practicality is a whole lot different. Ideally a guilty party would admit when he is guilty without any effort from anyone. Practicality says that seldom happens. Ideally there would be complete transparency. Practicality says to do so would put many people at great risk. The trick is to strike enough of a balance to have relative high justice while maintaining a relative high security. Anyone who thinks they know the exact balance is just fooling themselves.

  33. Alex, I agree and appreciate the humility and honesty in your subsequent statements.

    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.

  34. Beldar says:

    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.

  35. Beldar says:

    Eep — “less” credulous, sorry.