so much for the "slam dunk"

[PaulS]

Why do I have to defend Holder’s or anyone else's statement - I never brought up their statements in this thread (you have quote various people repeatedly as if I or someone else is their spokesman).

The only thing I said was that the problem was not the choice of the court and that any coerced evidence/testimony would be thrown out in both the civilian court or a military court.

[scottw]

Originally Posted by PaulS

Why do I have to defend Holder’s or anyone else's statement - I never brought up their statements in this thread (you have quote various people repeatedly as if I or someone else is their spokesman).

The only thing I said was that the problem was not the choice of the court and that any coerced evidence/testimony would be thrown out in both the civilian court or a military court.

maybe....maybe not


The Detainee Treatment Act, or “D.T.A.,” enacted on December 30, 2005, provides that no individual in
the custody or under the physical control of the United States Government shall be subject to cruel,
inhuman, or degrading treatment or punishment, as defined by reference to the Fifth, Eighth, and
Fourteenth Amendments of the U.S. Constitution, regardless of the nationality or location of the
individual. Therefore, the M.C.A. requires military judges in military commissions to treat allegedly
coerced statements differently, depending on whether the statement was made before or after December 30,
2005. See 10 U.S.C. § 948r(c), (d). For statements made on or after that date, the military judge may admitan allegedly coerced statement only if the judge determines that the statement is reliable and possessing
sufficient probative value, that the interests of justice would best be served by admitting the statement, and
that the interrogation methods used to obtain the statement did not amount to cruel, inhuman, or degrading
treatment or punishment prohibited by the D.T.A. If a party moves to suppress or object to the admission
of a proffered statement made before December 30, 2005, the military judge may admit the statement if the
judge determines that the statement is reliable and possessing sufficient probative value, and that the
interests of justice would best be served by admitting the statement. In evaluating whether the statement is
reliable and whether the admission of the statement is consistent with the interests of justice, the military
judge may consider all relevant circumstances, including the facts and circumstances surrounding the
alleged coercion, as well as whether other evidence tends to corroborate or bring into question the
reliability of the proffered statement

[spence]

Originally Posted by scottw

maybe....maybe not


The Detainee Treatment Act, or “D.T.A.,” enacted on December 30, 2005, provides that no individual in
the custody or under the physical control of the United States Government shall be subject to cruel,
inhuman, or degrading treatment or punishment, as defined by reference to the Fifth, Eighth, and
Fourteenth Amendments of the U.S. Constitution, regardless of the nationality or location of the
individual. Therefore, the M.C.A. requires military judges in military commissions to treat allegedly
coerced statements differently, depending on whether the statement was made before or after December 30,
2005. See 10 U.S.C. § 948r(c), (d). For statements made on or after that date, the military judge may admitan allegedly coerced statement only if the judge determines that the statement is reliable and possessing
sufficient probative value, that the interests of justice would best be served by admitting the statement, and
that the interrogation methods used to obtain the statement did not amount to cruel, inhuman, or degrading
treatment or punishment prohibited by the D.T.A. If a party moves to suppress or object to the admission
of a proffered statement made before December 30, 2005, the military judge may admit the statement if the
judge determines that the statement is reliable and possessing sufficient probative value, and that the
interests of justice would best be served by admitting the statement. In evaluating whether the statement is
reliable and whether the admission of the statement is consistent with the interests of justice, the military
judge may consider all relevant circumstances, including the facts and circumstances surrounding the
alleged coercion, as well as whether other evidence tends to corroborate or bring into question the
reliability of the proffered statement

He was brought into custody in 2004 and held at GITMO until 2009. Is the date of the statements public knowledge?

I believe the DTA was to govern how detainees were treated, not how a Military Commission would interpret if evidence was admissible. I would think that if there was an indication that coercion was present, you'd still have to prove that it didn't influence the evidence being submitted.

To Detbutch's point above, it's a fair question to ask if the Federal Judge used a different rational to determine inadmissibility than a Military Tribunal would have. But I'm not sure they would...

Here's an interesting take on the subject.

Lawfare Military Commission Rules on Coerced Evidence

-spence