The Nature of Freedom, the Validity of Confessions, and the Burden of Proof

Today’s missive is largely going to be about Omar Khadr, not because I have any desire to defend him (I’m not really all that sure that I do) but because there are elements of his case that require careful thought. And if there’s one thing I want people to do more of these days, it’s think.

* * *

It is believed in many circles than the only time someone confesses to a crime is when they are actually guilty of having committed said crime.

Sadly the world is far more complicated than that.

Context is everything, and so one must always be prepared to ask questions: how was the confession obtained? Was it coerced or freely given? If the confession was coerced, then was it coerced by manipulation or by torture?

And, for that matter, do we care?

Law enforcement interrogate prisoners all the time. And while it is not unheard of for police forces to try to manipulate prisoners into telling them what they want to hear, law enforcement is bound by law to refrain from torture of any kind. Under normal circumstances one would think that the military would be bound by such laws as well, and they generally are. The Geneva Conventions have the force of international law and, among other things, provide standards for the treatment of prisoners in a theater of war. But there is an oddity present in American law that allows the President of the United States to essentially contravene any law he chooses simply by publishing a finding that said law does not apply in a specific circumstance, or set of circumstances.

This is essentially what President Bush did when he authorized the use of “Enhanced Interrogation Techniques” on War on Terror detainees.

Traditionally, when someone confesses due to torture, the confession is regarded as being given under extreme duress, and is therefore unreliable. Not so in the military courts that were convened in the Guantanamo Bay facility. Confessions given as a result of torture were commonplace, and so they were treated as reliable.

Inasmuch as I understand the desire to see captured terrorists suffer as much as possible (I myself have questioned, on occasion, whether or not the Geneva Conventions actually apply to terrorists on the grounds that they are not soldiers fighting under the flag of a sovereign nation) the better angels of my nature (what few I have) generally tend to draw the line on gratuitous torture, or the application of torture for information.

Omar Khadr confessed after being subjected to numerous interrogation sessions, many of which involved the use of torture techniques. His confession was treated as reliable and was the key piece of evidence in his eventual judgment and sentencing.

So, the question then becomes: was his confession really valid? And do we care?

* * *

When criminal cases are tried in a traditional court of law the prosecution bears the burden of having to prove to a judge or a judge and jury that the evidence collected establishes beyond any reasonable doubt that the accused did, in fact, commit the crime in question. Conversely, it is the defense bears the burden of having to prove to a judge or to a judge and jury that such reasonable doubt exists.

Neither judge nor judge and jury can convict if it has been demonstrated that there is reasonable doubt.

In a criminal case evidence is primarily given by testimony backed up by physical evidence gleaned through a forensic investigation. This is true in a military court as well, but a military court also has the added element of after-action reports and battlefield testimony.

The after-action reports and battlefield testimony concerning Khadr’s capture are interesting for two reasons: much of the recorded testimony is contradictory, and no one actually saw Omar Khadr lob the grenade that killed Mr. Speer, nor did anyone physically see him do much of anything else until the moment when he was shot by one of the soldiers on the scene.

The question then becomes: how do contradictory reports and a complete lack of an eyewitness constitute proof beyond any reasonable doubt? And do we care?

* * *

The most important question in all of this is, do we care? And for a great many people the answer is a resounding no. 

There is so much hatred of terrorists and terrorism that people have stopped thinking and have taken to simply assuming that whatever their peer group tells them about the Khadr affair, and any other matter having to do with terrorism, is correct, regardless of the facts on the ground. The problem is that hatred does not beget truth. All hatred does is beget more hatred.

The exercise of freedom of speech and freedom of expression is not free. It comes with a price. The problem is that there are few in our self-absorbed, instant-gratification-seeking society who are willing to pay that price.

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About mtyzuk

Who is I? I is me. I think. I know there used to be a me. I may have had it surgically removed.
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