>> Friday, January 29, 2010

One of Slate's resident contrarians, the often-perceptive and ever-provocative Jack Shafer, has a piece up this week on Scott Horton's recent Harper's Gitmo exposé ("The Guantánamo 'Suicides': A Camp Delta sergeant blows the whistle,"). (I've mentioned the Horton article previously, writing that it's a must-read.)

Sadly, Mr. Shafer relies extensively on a pretty awful series of blog posts by Joe Carter of First Things (the first of which can be found here; I'm too lazy to offer links to all of them)--ostensibly four in number, though you can easily disregard the first two as little more than a collection of conclusory statements ("...anyone who reads the article carefully will see so many obvious holes and find the case is so unpersuasive that it hardly needs rebutting.") and ad hominem attacks ("The 'investigative' piece they published by Scott Horton, who happens to be a human rights lawyer rather than a journalist, is a prime example of why few people—and no one on the right—takes the magazine seriously anymore."). It's not until Mr. Carter's third entry in the series--after he was publicly called out by Andrew Sullivan and others--that Mr. Carter bothered to actually dig into the substance of Mr. Horton's allegations, and all I can say for now about that effort is that it's a mixed bag.

I have to say that, because Mr. Carter's rebuttals are based on the five-hundred page, heavily-redacted Naval Criminal Investigative Service (NCIS) report that has been questioned and criticized by Seton Hall's Center for Policy and Research, and I've only judiciously skimmed about a hundred-and-seventy to a hundred-and-eighty-or-so pages of the report. I can say that there's at least one instance in which the report flatly contradicts one of Mr. Carter's original assertions (that it was implausible that resuscitory efforts were performed after rigor mortis was present--a nurse on duty told NCIS that this is precisely what he witnessed; Mr. Carter subsequently backtracked and acknowledged that rigor had set in but that this supported his belief that the Gitmo inmates committed suicide, since rigor would make it difficult to set the bodies up in their cells), and I can say that the NCIS report Mr. Carter is relying on is just as full of hearsay and supposition as the Horton article might be in the eyes of Messrs. Carter and Shafer.

Which brings us to the point of this entry, actually, since I think Messrs. Carter and Shaffer have made themselves a useful object lesson. Mind you, I'm not quite prepared to say they're ultimately wrong: while I was a little overwrought after reading the Horton piece, and remain skeptical of the government's claims that the detainees committed suicide, I'm not yet so naïve as to blindly accept the claims of Mr. Horton's witnesses--indeed, I made a point in calling attention to the Harper's article to write, "If Mr. Horton's sources are accurate and his conclusions correct," a very careful choice of language, since his sources may be inaccurate or flat-out wrong, as may be his conclusions. It's far more accurate to say that I believe there's grounds for further, independent investigation, and if Mr. Horton's allegations are in any way substantiated, for criminal prosecution; meanwhile, my response to Mr. Carter's frequent claim that those who disagree with him may wish to reconsider lest they suffer public humiliation is that I frankly prefer public humiliation by being in error to the public humiliation of being citizen of a nation that engages in conduct unpleasantly reminiscent of the Khmer Rouge's administration of the Tuol Sleng interrogation camp.

But I digress. As I was saying, I believe Messrs. Shafer and Carter provide a useful object lesson by way of statements like this one from Mr. Shafer: "Horton, a lawyer and human-right advocate... conflates hearsay and speculation into 'evidence'...." Ah! Evidence! One of my favorite things, I have to confess, about being a lawyer, and the thing I might miss most if I ever give the profession up or change my practice.

Shafer and Carter are very, very critical of Mr. Horton's use of hearsay, nevermind that the government's report contains quite a lot of it, too. But... hang on, before I do that, maybe it would be fun to have a quick quiz. Everyone ready? Here we go--

True or false: hearsay is inadmissible in a court of law.

Pencils down!

So (heh-heh-heh), how many of you answered "true"?

I have smart readers, so maybe everybody got it right: the correct answer is false--while hearsay is generally inadmissible as evidence, there's a very long list of exceptions to this rule and statements that are technically hearsay are admitted into evidence in courtrooms all over the United States without anyone so much as imagining the possibility of thinking about perhaps making an objection.

We might start a step back, actually, and talk about what hearsay is, because I suspect it's not what most people take it to be. In colloquial usage, "hearsay" is regarded as something akin to rumor. But in the American legal system, hearsay is "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Black's Law Dictionary, Sixth Ed., quoting Federal Rule Of Evidence 801(c), which is echoed by most, if not all, states.) Now, the particulars of this definition are important, especially that very last clause--"offered in evidence to prove the truth of the matter asserted"--an out-of-court statement offered for a reason other than "the truth of the matter asserted" should always be admissible. What do we mean by that?

Take, for instance, a situation in which a witness on the stand says, "I heard someone shout, 'He's got a gun!' so I hit the dirt, and that's when I heard the shots." "I heard someone shout" sounds an awful lot like hearsay--is it?

The answer depends on why it's being offered--if the point is to prove that "He" actually had a gun, then, yes, it's hearsay. However, if the point is to show why the witness "hit the dirt" the statement isn't hearsay at all--"He" may or may not have actually had a gun, who knows, but the statement explains the witness' state-of-mind or belief when he acted in a particular and peculiar fashion.

That's the first step in a hearsay inquiry, and only the first step. See, here's the other thing: not all hearsay is inadmissible anyway--there are exceptions to the rule.

First and foremost, statements that a "Party-Opponent"--that is statements made by a Plaintiff or Defendant (criminal or civil) or their agent--are generally admissible under a general exception carved into the rule itself.

In addition, there are twenty-something (if memory serves) explicit exceptions under the Federal Rules that apply whether a declarant is otherwise available or not, and somewhere around that many exceptions in states that model their evidence rules after the Federal Rules (North Carolina has twenty-three, including #24--"A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness..."!). Records maintained in the regular course of business are admissible hearsay, as are public records in general. So are "excited utterances," i.e. things that somebody just blurted out without thinking about it, and "present-sense impressions," i.e. something immediately perceived that is announced while it's actually being perceived by someone ("He has a gun!", shouted moments before shots ring out, might well fall into one of these two categories even if offered to prove that "He," in fact, actually possessed a gun, and not to explain why the witness "hit the ground"). Just to name a few.

But wait, there's more! One of the reasons hearsay is generally inadmissible is to protect a person's right to face witnesses in court and question their accounts, but there are four more situations in which hearsay is admissible even if the person who made the original statement is unavailable to testify (including "unavailable" because he has a right not to take the stand) with another catchall provision covering things nobody might've thought of that seem like they should be admissible. These include prior sworn statements in a deposition or earlier hearing or trial, "deathbed" statements, and the one that bites most of my clients in the ass, the "statement against interest," i.e. an out-of-court statement that could subject somebody to civil or criminal liability.

That last one's a biggie: it's how confessions get read to juries. A serial killer gets arrested, taken to the police station, read his Miranda rights, and asked a bunch of questions about all those missing hookers, to which he gives detailed answers; these are out-of-court statements made as to the truth of the matters asserted. In other words, they're hearsay--Mr. Serial Killer isn't going to testify, he has an absolute right to not to take the stand, which makes him unavailable in the meaning of the law; the jury will be hearing Mr. Serial Killer's words secondhand, by way of the police detective who took it. As hearsay, they're presumptively inadmissible--except, of course, look, see, there's an exception: since Mr. Serial Killer's words could land him in prison or get him executed, they're treated as "statements against interest" and thus the day--or at least the State's case--is saved.

Which probably gets us to the point I really wanted to make--I could go on to talk about Ohio v. Roberts and Crawford v. Washington (probably the most exciting legal decision in my lifetime thus far from a purely professional point-of-view)--but I think I can make my major point about Shafer and Carter (remember them?) here: I think they're treating hearsay as something contemptible out of a broad misunderstanding of the general legal rule. They see a report where a witness says, "X told me...," and respond, "Ah, well that's just hearsay," subconsciously adding "inadmissible" because they've seen Perry Mason or Law And Order. But the actual legal rule they're brain-checking is actually rather nuanced and much more interesting: hearsay is inadmissible except when it isn't, and much of the legal system would actually crumble if hearsay actually was always inadmissible. A detective repeating a criminal's confession? A CEO's description to a jury of a contract for manufacturing and delivering widgets? The claim that the witness is the decedent's grandchild and therefore covered by her will?* These are all hearsay claims.

Furthermore, there's another point here: the disrepute of hearsay is a legal matter, not a matter of logic or reason per se. It's not liked in courtroom (except when it is) because the court is traditionally viewed as a place where truth is arrived at by having two sides to a question fight over it, presenting evidence and arguments; allowing in statements from people who aren't there and who therefore can't be questioned is seen as unfair. In other words, the issue isn't that hearsay is inherently unreliable, but that it can't be tested using the favored tool of the legal system for testing things (i.e. cross-examination). Because a hearsay statement might be untrue or inaccurate, it's not fair to use it against a party (indeed, in cases where the party in question could go to jail, the unfairness is enshrined in the Confrontation Clause of the Sixth Amendment--but like I said, I don't want to get into Crawford, even if it's kind of awesome). The exceptions to the hearsay rule are all built around the general idea that certain kinds of statements carry their own guarantees of reliability and therefore don't need to be cross-examined as much or perhaps at all.

Outside of this legal context, however, the fairness issue is something else entirely--it may even be a complete nonissue. Should your spouse call and say, "I just got a call from the school--our son's throwing up and one of us needs to pick him up, can you do it?" you're hardly likely to reply, "But that's hearsay! I need hard facts, dammit!" No, whatever else you may do--pick the kid up, negotiate with your spouse over who's in a better position to do it, call another family member--whatever you do, you're going to take it as a given that you have a sick child.

Now, you might consider things like context or source when evaluating the reliability of hearsay--what a lawyer would call weight of the evidence, as opposed to its admissibility. And Messrs. Shafer and Carter may be correct to assert that any hearsay Mr. Horton relies on should be given low weight because of its inconsistency with other evidence or concerns about its source. But that's something else, isn't it? The issue there isn't, "Oh, well that's hearsay and hearsay is worthless," the issue is "Oh, well that's unreliable evidence"; i.e. it isn't unreliable because it's hearsay, it's unreliable for whatever other reasons Shafer and Carter think it's unreliable.

And so endeth, I think, the lecture. I hope I haven't belabored any points, and apologize if I have; furthermore, I hope the foregoing was interesting and educational and not stupid and obvious. Any thoughts or questions?

*An old lawyer's joke runs something like this:


WITNESS: My name is--

OLD COUNTRY LAWYER: (rising dramatically to his feet) Objection!

JUDGE: (puzzled) Grounds?

OLD COUNTRY LAWYER: Your honor, his momma's the one who told this witness what his name was. Unless she's here to testify....


Jeri Friday, January 29, 2010 at 3:08:00 PM EST  

Hey, I got the quiz right! :) But then I did spend 12 years married to an attorney, and hearing his rants on various subjects was an education for the layperson. :)

Mrs. Bitch Friday, January 29, 2010 at 4:19:00 PM EST  

Hey, I got it right, too, but only because I've been arrested 37 times and have become intimately familiar with the legal system.

Tom Friday, January 29, 2010 at 7:28:00 PM EST  

Eric, first, thanks for following up with this post. I read your first post about the Harper's expose, and the Harper's article itself, and the Slate article doesn't seem to have much substance to it. It's derisive, without really explaining why.

I had the same feeling about the Gitmo situation that you seemed to have. First, suicide as an attack strategy may work when accompanied by bombs and such, but without them? Not so much. And the statements made about how the prisoners eluded discovery (hanging sheets to cover actions? In a prison? Really?) seemed to be pretty far-fetched. Top it off with the fact that the prisoners were about to be released, and I don't buy that at all.

The only thing the Slate guy bases his derision on is that he says it would be smarter for the boogie-men (government, guards, CIA, whomever) to do successive killings and cover-ups rather than doing 3 at once. While I don't know which would be smarter, it doesn't seem to me that "smart" had much to do with this situation.

He doesn't seem to like the nickname "Camp No," either. But what does a colloquial nickname, used by a few guards, have to do with whether or not a story is true? But he tries to get a lot of mileage out of that.

Anyway, the Slate article hasn't done anything to change what I thought about the Harper's expose. And I am of the same mind as you about the distaste of a cover-up, if indeed one was even necessary.

You always challenge me to think, which I really like, so thanks.

And, by the way, I got the quiz right, too. :)

Joe Saturday, January 30, 2010 at 12:25:00 AM EST  

Shafer at times comes off as a lazy contrarian with an axe to grind ... this is one of those times.

The matter deserves better than he offered, particularly if his poorly defended allegations are correct.

Personally, I still am not over his multi-part smear job of Bill Moyers. But, that's just me.

Sanpete,  Sunday, January 31, 2010 at 4:41:00 PM EST  

You're not being entirely fair to Carter. It's true that he hasn't been entirely fair either, and has been sloppy in some respects, but he's also served a most useful role in being willing to raise questions and gather evidence that help put Horton's piece in better perspective. Horton's article was met with great credulity in some quarters, while the usual suspects on the Right were mum. Carter was the first to try to break the spell Horon seemed to cast. Even in his early posts (for which you have read the discussion for the full benefit), he was raising good questions. That he's gotten some more reasonable folks to take a step back shows he's accomplished his purpose well.

The NCIS investigation has some real problems, but the testimony gathered is mostly direct eyewitness sworn testimony, and there's plenty of it. There are, as I count them, at least 35 eyewitnesses who directly contradict Horton's theory, all speaking shortly after the events. Horton has four witnesses, several years later, who saw very little if anything.

The silence in the mainstream media is telling.

Another evidence-based attack on Horton, which is well laid out and includes some checking with other sources (some unnamed) is here:


Eric Sunday, January 31, 2010 at 5:54:00 PM EST  

Sanpete, thank you for your comment. There are some interesting points in the Human Events piece, although it's worth noting that Mr. Scarborough seems to be relying extensively on the Pentagon's accounts, which are precisely what's at issue--that is, repeating the very account that's being questioned and criticized isn't independent evidence that the criticized account is right. Mr. Scarborough also seems to think that this is a partisan issue--he refers repeatedly and specifically to the Obama Administration for points in his favor (as if that should carry some extra weight with investigation critics) and repeatedly refers to investigation critics as liberals, as if the motivation is to beat the rotting corpse of the previous, Republican administration.

Those habits of Mr. Scarborough don't mean he's wrong, but they do make it hard to read his piece in search of substantive claims. Torture is a nonpartisan issue--one might recall that the treaty that torture critics are asking this country to honor was one of Ronald Reagan's genuine achievements in office. One might also note that it is possible that the Obama Administration may be refusing to prosecute documented torture cases and to investigate allegations like Mr. Horton's for motives that are only indirectly related to partisanship--i.e. they don't want to expend political capital, or create some sort of "sideshow," or are concerned that a Justice Department investigation into Penatgon and CIA conduct will divide the Washington career bureaucracy against itself.

If there are things that liberals and conservatives (or, for that matter, Democrats and Republicans) ought to be able to agree upon, it's that the United States Of America does not torture, nor does it kill its prisoners (at least not without Due Process, but capital punishment is another subject altogether).

As for the mainstream media silence, Dahlia Lithwick's take on it over at Slate is worth a look. I would add that I don't find the media's silence or sound on a subject to be indicative of its merits--I would have to believe, in that case, that Britney Spears' recent appearance in front of a judge over her conservatorship was a more-far-ranging and significant matter than the fact that the government finally settled Cobell v. Salazar (a development I frankly was unaware of until I dug--and dug and dug--for the status of the appalling BIA mismanagement case that's been going on since the mid-'90s; and kudos to the Obama Administration for finally throwing in the towel on it, by the way).

Sanpete,  Sunday, January 31, 2010 at 11:50:00 PM EST  

Good point about relying on the Pentagon, of course, but Horton and others have made it appear that there are no reasonable explanations for certain things, or at least that the Pentagon hasn't advanced any. Whether the Pentagon's claims are to be trusted or not, they do address some of those points in reasonable ways.

As for independent evidence, there seems to be disagreement about what counts. There's a lot of sworn eyewitness testimony that contradicts Horton's theory, but he appears only to trust the evidence of his own witnesses, such as it is.

Scarborough undoubtedly sees the Obama Administration as more credible to those who are accepting Horton's theory. It's mainly parts of the Left that have swallowed Horton's story whole, while the Right has largely remained silent.

I'm afraid this is a far more juicy story than the settlement of Cobell v Salazar. I don't think the media are ignoring it because it lacks mass appeal.

I find Lithwick's explanation of the media silence (and Greenwald's similarly psychological explanation) very implausible. Horton's story is clearly not too terrible to be true; the media know better than that. By far the more likely explanation is the evident lack of good foundation given for Horton's story and a lack of any further foundation for it so far discovered by any journalists who may have looked into it (and very likely some have).

You have Hickman who saw a van pick up unknown detainees and go back and forth to a suspicious location, an unknown code word and reaction, some watch guards who didn't see anything, and some dispute over timing. The latter is hardly unexpected, especially after several years--there was already some disagreement over the timing even soon after the events (22 NCIS witnesses place discovery of the bodies at various times between midnight and 0100, 2 before). It's hard to make much of Penvose's recollections. That the careful Horton (and his careful editor) didn't say what the code word meant or what kind of petty officer was involved suggests to me Penvose no longer remembers, if he ever knew. Many kinds of emergencies arise at a place like Guantanamo. It's not clear from Horton's carefully turned prose whether Penvose recalls when the camp lights came or only that they did come on. And it's hardly damning that two tower guards didn't see something without knowing things like which way they were looking (and how attentively--probably pretty dull work).

After reading the many NCIS eyewitness statements, which do seem quite real, it's hard for me to worry too much about Horton's witnesses who barely saw anything. I think his witnesses are telling the truth as they recall it but that it means very little.

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