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The Differences Between War and Law Enforcement

Vice Adm. Bruce MacDonald, the Navy judge advocate general, has some problems with the Obama administration’s desire to place a “voluntariness” standard on evidence entered into military commissions. “This is an area where I do disagree with the administration and I think the [Senate Armed Services] committee got it right,” MacDonald said. There’s a fundamental difference, he explains, between a “voluntariness standard that grew up in a law enforcement environment.” If a soldier kicks in a door in Afghanistan and acquires a statement from someone, “that’s inherently coercive,” and so introducing a voluntariness standard for statements to be entered into evidence would have no choice but to eliminate such statements and is therefore too restrictive.

MacDonald prefers a “totality of evidence” standard, under which closure to the point of capture, a commission judge would look more to “corroboration” of defendant’s statement as the basis for evaluating it, and as time passes — “six months, a year,” the admiral said — then the judge could lean more on a voluntariness standard, since there’s no longer an “inherently coercive” environment.

Kris and Johnson say they see the wisdom of a totality-of-evidence standard, but say they don’t think that requiring anything other than a voluntariness standard will withstand judicial review. “This is really coming down to that particular [constitutional] right, the voluntariness standard,” MacDonald concedes. “I think we really can reach some common ground, [in terms of] requiring a balancing test, and what the administration’s position is right now.”

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