Guantanamo’s influence on Israeli civilian courts

Normally, the only kind of testimony that can be used to convict a defendant, any defendant from a petty thief to an arch terrorist, is testimony made by witnesses in court.

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January 12, 2016 03:07
4 minute read.
Guantanamo Bay

The exterior of Camp Delta is seen at the U.S. Naval Base at Guantanamo Bay, March 6, 2013. The facility is operated by the Joint Task Force Guantanamo and holds prisoners who have been captured in the war in Afghanistan and elsewhere since the September 11, 2001 attacks. . (photo credit: REUTERS)

Almost no one has followed the Knesset Constitution, Law and Justice Committee’s hearing of what could be one of the most radical changes ever in the country’s legal system in the balance between national security and due process.

The change could potentially put Israeli civilian courts in line with unusual departures from most democracies’ rules of evidence protections for defendants that the US promoted in military courts at Guantanamo Bay.

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In a more global sense, what the Knesset decides on the very esoteric sounding issue discussed – whether to allow battlefield confessions and statements by terrorists into evidence in Israeli civilian courts – could also have major repercussions for delegitimization issues and the Boycott, Divestment, Sanctions Campaign against Israel.

So why has this gotten little attention until now? The most obvious reason is that almost no one say sources, including apparently many of the Knesset committee members, has an easy time understanding what the question is and what the problems are.

In short, the dilemma goes like this.

Normally, the only kind of testimony that can be used to convict a defendant, any defendant from a petty thief to an arch terrorist, is testimony made by witnesses in court.

That is the only way that the judge can personally assess the witness’ credibility, whether the testimony is given voluntarily and that the defendant can cross-examine any accusing witnesses.

This is the famous hearsay rule viewers might recognize from a lawyer movie where an actor calls out, “objection, your honor, hearsay.”

There are exceptions to this rule that have been narrowly defined and hotly debated over time, but they are exceptions, which once accepted, apply in all criminal cases.

Supporters say the change in law being discussed is necessary because of the importance of terrorism cases and the difficulty sometimes in proving a terrorist’s guilt.

They add this is especially true if most potential witnesses against the terrorist are in some kind of enemy territory and cannot be realistically brought to testify – therefore, a new exception should be created just for those cases.

According to the amendment to the law of evidence, confessions and other incriminating statements made on the battlefield against a terrorist could be used in court despite their being hearsay.

This could lead to convictions in cases where otherwise a terrorist might go free or be held in administrative detention, provided that there is also some additional evidence so that the conviction is not solely based on the exceptional and controversial battlefield statement.

The Knesset committee’s legal advisers are opposing the change, a change put forth by the Justice Ministry on behalf of the state prosecution, which handles terrorism cases.

The legal advisers say that however difficult it is to convict terrorists, that many other kinds of more standard criminal proceedings have equal evidentiary challenges and that creating this exception could open up Pandora’s box, eroding defendants’ protections for a fair trial.

These advisers add that on top of fairness concerns that defendants would not get to cross-examine their battlefield accusers who may not be in Israeli territory, the change should be blocked “to ensure Israeli and international public backing for the Israeli criminal law and respect its convictions of criminals.”

In particular, they noted that the world broadly regards administrative detention proceedings as illegal, and this change in law could lead to the same conclusion about regular civilian court proceedings.

What does this have to do with US military courts in Guantanamo Bay, Cuba? According to Charlie Savage’s Power Wars, one of the most heated policy debates of the Obama administration occurred in Spring and August 2009 when acting assistant attorney-general David Barron and top military judge advocate Mark Martins fought over this exact same issue of whether to use a “battlefield exception” to slip statements into evidence that normally would not be allowed.

Barron warned that US civilian courts and appeal courts would overturn military court convictions based on battlefield evidence, particularly since many of them were made at gunpoint.

Martins argued and won over President Barack Obama and Congress that the battlefield statements could be used without being exposed to accusations of lack of fairness or “victor’s justice” by requiring courts to find that the statements were reliable and that using them would serve “the interests of justice.”

Critics say this was among several decisions to upend traditional criminal norms for terrorism cases, which have undermined the heart of troubled military trials at Guantanamo and made it a badge of shame for the US.

The same critics would likely say the Israeli change is worse because it would “pollute” Israel’s civilian courts.

Supporters will say that the change is a necessary evil in the current fight against a monthslong wave of terror with no end in sight.

Whichever direction the Knesset takes, the stakes could not be higher.


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