Red Herrings in the Defense of Liberty Are No Vice

Today’s Washington Post contains an article on the upcoming congressional debate over the procedures to try Guantanamo enemy combatants that features this trope that I’ve seen or heard several times in the past few days:

“I don’t want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he’s got to advise them of some rights before he takes a statement,” [DOD Dep. GC Daniel] Dell’Orto said. “I don’t want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he’s still looking over his shoulder to see whether there’s not an enemy coming in after him.”

House Armed Services Committee Chairman Duncan Hunter says the same thing later in the article, and Sen. John Cornyn repeated that idea on Tuesday on the NewsHour. My question: Where is this idea coming from? There’s nothing in the Hamdan decision, as far as I can tell, that even remotely touches on domestic criminal procedure rights being applied to the battlefield. If I’m reading Hamdan correctly, this is beyond a slippery slope argument, it’s digging a trench and then pointing to the slope.

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7 Responses

  1. Ryan Walters says:

    I think you’d call that a straw man, rather than a slippery slope.

  2. Orin Kerr says:

    How do military court martials generally deal with chain-of-custody issues? Does anyone know?

  3. Joe Miller says:

    I don’t know the answer to Orin’s question. Having taught Evidence, however, I know that, in the federal courts, once a very low threshold of likelihood has been passed, questions about the strength of a link in the chain of custody go to weight, not admissibility.

    Consider, for example, this utterly typical paragraph from a federal appellate decision in a criminal case:

    “Barrow argues that the liquor bottles should not have been allowed into evidence because the chain of custody was compromised. Under Federal Rule of Evidence 901(a), authentication is a condition precedent to admissibility. The district court must determine ‘if there is a reasonable probability that the evidence is what it is purported to be.’ Cruz, 352 F.3d at 506 (internal quotation marks omitted). Once this is established, ‘[a] possible defect in the chain of custody for a certain piece of evidence factors into the weight given to the evidence rather than its admissibility.’ United States v. Scharon, 187 F.3d 17, 22 (1st Cir.1999).”

    United States v. Barrow, 448 F.3d 37, 42 (1st Cir. 2006).

  4. Bruce Boyden says:

    Ah, I see. I took the statements to be some sort of implied criticism of Hamdan. And I’m not sure that’s a misinterpretation. But they make more sense as warnings that court-martial requirements should not be reflexively applied to battlefield apprehensions.

  5. Deven Desai says:

    Here’s what a quick look at the UCMJ says regarding the rules at trial (10 U.S.C. 836):

    (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

    (b) All rules and regulations made under this article shall be uniform insofar as practicable.

    And a quick look at one other section (846 — Opportunity to obtain witnesses and other evidence) shows:

    The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States, or the Commonwealths and possessions.

    The term President seems to be the President of the United States but I am not certain that is the case. The definitions do not cover the term and it is capitalized such that I think it means the President of the United States but I could easily be wrong here.

    Assuming the Rules of Evidence are in play, Joe’s point seems to address the chain of custody question.

  6. Joe Miller says:

    I’ve done a little more digging on the question Orin posed about chain of custody doctrine in the courts martial.

    My quick-and-dirty research indicates that the courts martial use an authentication rule like Fed. R. Evid. 901, and take a similar approach on admissibility.

    Consider the following (admittedly lengthy) excerpt from a recent case from the U.S. Court of Appeals for Armed Forces (previously the U.S. Court of Military Appeals):

    “The evidence of the process in this case also accounts for the integrity of the videotape. Appellant claims that the testimony fails to establish a chain of custody for the videotape for the time before it was delivered to Mr. Therrien. The record reflects that, consistent with the bank’s practice, the tape was removed from the video recorder by a bank employee. That fact was recorded in the log. The tape was kept in a storage room until it was sent to Therrien upon his request. Therrien, in turn, maintained possession of the tape until he surrendered it to investigators. Appellant, on the other hand, has offered no evidence, outside speculation, that the tape was mishandled or altered. Moreover, to establish chain of custody, ‘[t]he Government is not required to exclude every possibility of tampering.’ United States v. Maxwell, 38 MJ 148, 150 (CMA 1993).

    Current computer technology makes alteration of photographs a possibility any time that photographs are used. However, the Government need only show by direct or circumstantial evidence a ‘reasonable probability’ that the evidence is authentic. Id. at 150-51. That burden is met here by the evidence noted above regarding the removal and storage of the videotapes, the date/time indicator on the film, and the testimony regarding Mr. Therrien’s request and receipt of the tape. The logbook notes that the tape was sent to him, and he testified that he received it by interoffice mail.

    In addition, a mere claim that photographs may be altered should not bar their admission. The proponent is not required to prove a negative. Gaps in the chain of custody ‘go to the weight of the evidence, rather than its admissibility.’ Id. at 152 (quoting United States v. Olson, 846 F.2d 1103, 1117 (7th Cir.1988)). While it is possible that a tape can be altered, the evidence establishes a reasonable probability that the photographs accurately show the drive-up lanes on the date and time noted and, therefore, are what their proponent claims under Mil. R. Evid. 901(a). Therefore, we conclude that the military judge did not abuse his discretion in admitting this evidence, and the court below did not err in holding that the foundational requirements for this evidence were met.”

    United States v. Harris, 55 M.J. 433, 440 (C.A.A.F. 2001).

  7. Alan Tauber says:

    This is a rather common trope and I come across it when discussing the extraterritorial application of the Constitution with others. I think it’s ridiculous. All Hamdan decided was that you have to present the evidence to defense counsel. There’s nothing in Hamdan to indicate the Fourth Amendment would apply (and in fact, Verdugo-Urquidez is quite plain in holding that it wouldn’t) or that any other civilian criminal procedure issues would come up. Basically, the Court said make this look like a Court Martial or give the President the authority to differ.