Vice Adm. Bruce MacDonald: The Most Important Unseen Influence on Omar Khadr’s Military Commission

GUANTANAMO BAY — This morning, attorneys for Omar Khadr, the Canadian citizen charged with murder, conspiracy and material support for terrorism, will attempt to persuade a military judge to exclude from his military commission every statement Khadr made to a U.S. interrogator. They will argue, as they have in their motion, that Khadr’s youth (15 years old at the time of his capture), the confusion caused by the circumstances of his detention and the broad implications of that treatment render all his statements inadmissible. Right now, a judge has no guidance for ruling in this dispute outside of the Military Commissions Act of 2009 — unless he’s a speed-reader. And its provisions on this question reflect the influence of a man who has since become chief commissioning officer of the military commissions.

Section 948r of the Act is what Col. Pat Parrish, the military judge, will have to apply to Khadr’s case. It’s meant to exclude any “statement obtained by the use of torture or by cruel, inhuman or degrading treatment.” Sub-section (d), however, provides guidance about other statements not directly produced by such coercion and how “voluntary” a judge should consider them — precisely the question at stake in tomorrow’s pre-trial hearing.

The judge “shall consider the totality of the circumstances” around how a defendant provided such a statement. That includes “the circumstances of the conduct of military and intelligence”; the “characteristics of the accused, such as military training, age, and education level”; and “the lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.”

Interestingly, that’s a standard proposed by Vice Adm. Bruce MacDonald, then the Navy’s judge advocate general, last July to a Senate panel. During a hearing of the Senate Armed Services Committee during the drafting of the Military Commissions Act of 2009, MacDonald argued that there needed to be a broader standard for admissible evidence than fruit-of-the-poisoned-tree-concerned senior officials from the Justice and Defense departments wanted:

To assist our practitioners in the field, I recommend that you develop a list of considerations to be evaluated in making this determination.

Those considerations should include the degree to which the statement is corroborated, the indicia of reliability in the statement itself and to what degree the will of the person making the statement was overborne. [snip]

I am worried that a military judge that has a voluntariness standard imposed upon them is going to look at a statement taken at the point of a rifle, when a soldier goes in, breaks down the door, and takes a — takes a statement from a detainee, I’m worried that they’re going to apply a voluntariness standard to that. And I would argue, that’s an inherently coercive environment, when you have a rifle pointed at you.

And I’m concerned the judge is going to look at that under a strict voluntariness standard and say, that statement doesn’t come in. I would rather see this as part of a totality of the circumstances leading to, is the statement inherently reliable?

And what I’ve proposed is a series of factors that would give the judge more guidance, perhaps, on how to do that analysis.

Sen. Carl Levin (D-Mich.), the chairman of the committee, replied, “If you have actual language on your factors, you might want to share it with us.” MacDonald pledged to do just that.

It’s unclear how the considerations listed in the “totality of the circumstances” language will apply to Khadr’s case. Age is an explicit consideration, and one Khadr’s lawyers are pushing for. However, the “totality of the circumstances” might also mean that the “change in place” of Khadr’s questioners between Afghanistan and Guantanamo — or their “change in identity” during his Guantanamo detention — might inhibit the defense’s ability to contend nothing Khadr said was voluntary. Parrish will consider the question this week. (Maybe not necessarily starting tomorrow as scheduled, though, now that the commission Manual has just been issued.)

Oh, and Vice Admiral MacDonald’s newest job? Chief commissioning authority for the military commissions. After all, he’s clearly had more influence than anyone who isn’t an administration official or legislator over the Military Commissions Act of 2009.