Akhil Reed Amar is over at Slate providing his own spin on what "the Founders" thought about things, this time in response to the Ghailani verdict. I have read him some, and his fresh perspective is often quite good, particularly if we don't assume it necessarily is exactly what "the Founders" thought. But, sometimes he jumps off the rails, and his conceit (it comes off this way) of trying to make us assume that his spin is actually clearly what they thought (it gets a bit annoying) is sometimes trouble. You can read what I said over at the fray to that article, but a taste of what turned me off:
The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable. For example, even an innocent defendant, if forced to take the stand, might sweat, stutter, or get confused, and might thus be made to look guilty. But in Ghailani's case, no one tried to put him on the stand. Rather, the government wanted someone else to testify—and the Fifth Amendment simply has nothing to say about this question. (More here on the basic purpose and limits of the Fifth Amendment.)First, there is not clear determination what "the Founders' Fifth Amendment" is that won't divide many experts and given all of the water under the bridge since then, it should be taken with a grain of salt. We have Our Fifth Amendment now, which includes a couple more centuries of experience. Second, the concern was that evidence obtained from torture would be unreliable. Why this suddenly changes when it isn't the defendant's own testimony is unclear. Citing what he might do on the stand is misleading overall -- that's not the only place where the concern arises. Finally, avoiding torture overall is relevant. This includes benefiting from the crime or aiding and abetting the process; this is so even if the jury wants to do so:
For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.Again, the guy was convicted and was being held as an enemy combatant anyways. The judge noted this fact as well as that in this case it was granted that during the years of being in a proverbial black hole that he himself was coerced (at best; tortured at worst). Given that, I really can't assume the whole process wasn't tainted given the mentality used, even if some of the evidence (who knows? do you have the evidence involved in front of you? I don't) is true and all. But, focusing on narrow things like the reliability of the individual evidence is a rather narrow view of things. The ultimate end is to avoid torture or benefiting its practice by allowing its fruits into evidence. Does crime suddenly pay now? Finally, if we want to determine what "the Founders" (yeah, that sounds fake) thought, English Law Lords a few years back held:
"The principles of the common law, standing alone, in my opinion compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice."As I note over there, I'm with Justice Clark (who wrote Mapp v. Ohio, which applied the exclusionary rule to the states, after it was appied to the federal government since at least the 1910s), a former U.S. Attorney General, and fairly conservative on the Warren Court. The rule is necessary to protect the Fourth Amendment, especially since alternative techniques simply do not work in the real world. Outside of Professor Amar's ivy tower. But, torture is an even easier case, as shown by UK and Canadian practice of treating it differently even under their somewhat more loose evidence inclusion rules.
Finally, the facts of this case are particularly bad to use as an avenue for Amar's campaign. I'm still with Samuel Dash (The Intruders), perhaps best known as a Watergate chief counsel, in thinking him wrong generally. But, using this case in particular is a bit stupid. Adding to the meme that something wrong happened, at least to the degree of the government offering him too many rights or whatever. It isn't even a matter of the Self Incrimination Clause, since a military commission with looser rules would have likely excluded the evidence.
Sorry, Professor. Fail.