Rabbis For Human Rights - North America

Yom Kippur: Standing in Judgment

Throughout the Days of Awe, we use the imagery of being on trial with our lives in the balance, waiting to hear if we have been inscribed for another year in the Book of Life. We appeal to God’s mercy, rather than justice, yet understanding that both justice and mercy are needed for the world to function. As a community, we say vidui, confession, and hope that our testimony and our pleas reach God’s ears. We turn our fate over to the Supreme Judge. Whether we believe this literally, or see it as a metaphor, Yom Kippur is a powerful moment in time when we examine our lives and pledge to do better. We confess all manners of transgressions, whether or not we knowingly participated in them in the year that has ended, so that no

And yet the verdict is known: each year, we are forgiven. God has mercy on what we have done. Our confessions and our pledges to rehabilitate our lives are accepted. We can begin again.

Human trials lack an all-knowing God making perfect decisions from on high. Jewish law, especially in capital cases, requires unimpeachable witnesses to provide testimony as to a crime. Jewish law is also clear that one may not be compelled to self-incriminate, and that evidence obtained in a confession might be tainted. Evidence obtained under torture cannot be admitted in a Jewish court of law.

And in American civilian courts, it cannot be admitted as well. The Fifth Amendment to the Constitution prohibits a person from forced to testify against themselves and ensures the right to due process in judicial proceedings. Evidence obtained under torture is notoriously suspect, as a person will say anything to get the torture to end. American law ensures that suspects are read their rights, that they have the right to access the evidence used against them, and that they are given a swift trial.

Despite these limitations, the civilian court system has been remarkably effective in prosecuting suspects in the War on Terror, convicting close to 200 terrorists. American courts are able to protect state secrets, hold prisoners securely in Supermax prisons (no prisoner has ever escaped from a Supermax prison), and ensure that those who are determined to hurt us are brought to justice. However, since 9/11, the government has repeatedly tried to create an alternative system of justice to try suspected terrorists. Though the Supreme Court has ruled at various times that military commissions are unconstitutional and that the right of habeas corpus applies to suspects from the War on Terror, the government under both President Bush and President Obama have insisted that certain criminals are too dangerous to be tried on American soil or that it would imperil us as a nation to have the evidence against them revealed. Some suspected terrorists may never be tried at all, and will be held indefinitely.

This fall, we will see the results of this alternative system of justice in the trial of Omar Khadr, a Canadian citizen now on trial in a military commission for crimes allegedly committed when he was 15. Child soldiers under the age of 18 are traditionally treated as victims—indeed, the U.S. State Department considers it to be a form of modern slavery—but Khadr is being tried as an adult and has been imprisoned at Guantanamo for eight years. The evidence against Khadr was obtained under torture. In pretrial hearings in his case, the lead interrogator in his case testified that his interrogation tactics [1] included yelling, throwing things, threats and coercion, and in Khadr’s case specifically included the threat of gang rape and possible death in prison.  Similar allegation of torture in the case of another teenager held at Guantanamo, Mohamed Jawad, caused his case to be dismissed and he was returned to Afghanistan. But the judge in the Khadr case has ruled that the evidence obtained under torture can be admitted in court. Khadr has expressed the opinion that his case is stacked against him.

Many of the detainees held in Guantanamo are losing hope of every being released, even those who have been cleared for release but cannot be sent back to their home country. It goes against American law to hold people indefinitely without a chance of trial, and yet the government continues to assert its right to do so, first at Guantanamo and then at the Baghram prison in Afghanistan, out of reach of the protections of the American constitution. Indefinite detention also goes against American moral values. It is those values that we are supposedly protecting in the War on Terror, and we must follow them.

As we stand today in judgment, we must take action to ensure that in the fight against terror, we stand up for the values we hold as a nation. We cannot allow our moral compass to be defined by our enemies. For more information on actions you can take to restore the rule of law and hold President Obama to the promises he made as a candidate and on his first day in office, please visit:

www.rhr-na.org [2]

www.humanrightsfirst.org [3]

www.aclu.org [4]

Select Jewish Sources

Babylonian Talmud, Sanhedrin 9b

A person may not incriminate himself.

Rambam, Hilkhot Sanhedrin 18:6

“It is possible [a defendant] was confused in mind when he made the confession. Perhaps he was one of those who was in misery, bitter in soul, who long for death…”

Rabbi Melissa Weintraub, “The Bar against Self-Incrimination as a Protection against Torture in Jewish and American Law”

Jewish law, by contrast, is almost categorical in its ban of self-incriminating statements, declaring confessions inadmissible as evidence whether voluntary or involuntary, in-court or out-of-court, spontaneous or extorted…

The prohibition against self-incrimination is derived from two Biblical verses: “One witness shall not rise up against a man for any iniquity…At the mouth of two witnesses… shall the matter be established” (Deut. 19:15; cf. Num. 35:30 and Deut. 17:6); and “The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers…” (Deut. 24:16).

The sages read the first verse literally; a person may not be convicted on the basis of one witness’ testimony, even when confirmed by circumstantial evidence.4 From the second verse, the rabbis derive the law excluding the testimony of relatives (BT Sanhedrin 27b). On the basis of this second rule, Rava sets forth the principle that becomes the basis of the ban on self-incrimination; a person may not incriminate himself since he is his own kinsman. Like his relatives, he may not join in the prosecutorial process, serving—through a self-indicting confession—as one of the two witnesses necessary to determine guilt (BT Sanhedrin 9b);

Background materials

The Fifth Amendment to the Constitution

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here are some questions and answers on closing Guatanamo, military commissions, and the importance of using the existing civilian legal system for trying suspects in the War on Terror (adapted from Human Rights First):

Q: Why do we need to close Guantanamo?

A: Key military and intelligence experts say Guantanamo is risk to US national security. Alberto Mora, Former General Counsel of the Navy, testified that "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq – as judged by their effectiveness in recruiting insurgent fighters into combat – are, respectively the symbols of Abu Ghraib and Guantanamo." Admiral Dennis Blair, the Director of National Intelligence, elaborated: "I agree with the President that the detention center at Guantanamo has become a damaging symbol to the world and that it must be closed. It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security."[1] [5]

Q: Are regular federal courts the appropriate forum to try Guantanamo detainees suspected of crimes of terrorism and war crimes?

A: Yes, our federal courts have proven that they are up to the task. In a study of 119 terrorism cases with 289 defendants, filed since 2001, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea.[2] [6]

Since Jan. 1, 2009, more than 30 individuals charged with terrorism violations have been successfully prosecuted and/or sentenced in federal courts nationwide.[3] [7]  The War Crimes Act also explicitly gives federal courts jurisdiction to try war crimes.[4] [8]

Q: Will regular courts be able to protect American secrets?

A: U.S. federal courts are fully equipped to protect sensitive information concerning national security. The Classified Information Procedures Act (CIPA) establishes a detailed set of procedures designed to balance the defendant's right to a fair trial with the need to protect sensitive evidence that could endanger national security if disclosed. In many terrorism cases, U.S. courts have applied CIPA to successfully protect U.S. national security not only in espionage prosecutions but in terrorism prosecutions as well. HRF has also been unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court. [5] [9]

Background on military commissions (adapted from Human Rights First)

Military Commissions

On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which was included in the National Defense Authorization Act (NDAA). MCA 2009 is the third attempt at creating a military commissions system. The new reforms to the system include some improvements over the Military Commissions Act of 2006 and the November 12, 2001 Military Order issued by President Bush which first created a military commissions system after September 11. MCA 2009 however, still fails to provide many of the fundamental elements of a fair trial found in federal civilian courts and a court martial system. For example, the rules permit the admission of coerced testimony obtained at the point of capture; they use an overbroad definition of who can be tried before military commissions that includes juveniles and those not even engaged in hostilities; and they permit defendants to be tried ex-post facto for conduct not considered to constitute a war crime at the time it was committed.

On November 13, 2009, the Justice Department announced that the cases of the September 11 defendants — who had been charged in the military commissions in 2008 — will be transferred for prosecution in the Southern District of New York.

On April 27, 2010, the Department of Defense, after a long delay, finally released new rules governing the military commission proceedings. The new manual provides some needed reforms, such as giving defendants in capital cases the right to at least one additional counsel who is learned in applicable law relating to death penalty cases. Under the old rules, defendants in capital cases had no such right.

But the manual includes troubling rules that likely will undermine the constitutionality of future convictions. For example, the manual continues to permit the introduction of coerced statements under certain circumstances. In addition, unlike in courts-martial or regular federal courts, it permits evidence derived from statements obtained by cruel, inhumane, and degrading treatment if "use of such evidence would otherwise be consistent with the interests of justice." In addition, the manual, consistent with the 2009 Military Commissions Act, continues to permit defendants to be tried ex-post facto for conduct not considered to constitute a war crime at the time it was committed, such as material support for terrorism.

Background of Previous Military Commissions

On November 13, 2001, President Bush issued a Military Order [10] that authorized the trial of non-U.S. citizens suspected of terrorism before military commissions. In July 2003, the Administration designated six men to be tried before the military commissions - all of them detainees at the U.S. Naval Base on Guantanamo Bay, Cuba. Two of the designated detainees were subsequently released. The military commissions began on August 23, 2004.  On June 29, 2006, the U.S. Supreme Court in Hamdan v. Rumsfeld [11] held that the military commissions violated U.S. law and the Geneva Conventions.

On October 17, 2006, President Bush signed the Military Commissions Act 2006 (MCA) into law.  The MCA, among other things, establishes a system of military commissions for trials of non-U.S. citizen individuals who have been determined to be “unlawful enemy combatants.”

From Habeas Works: Federal Courts Proven Capacity to Handle Guantanamo Cases (The Constitution Project and Human Rights First)

The government began to detain individuals at Guantánamo in January 2002. After a series of storied decisions culminating in Boumediene v. Bush, the Supreme Court charged the judges of the District Court with developing the framework for reviewing the habeas cases of individuals detained at Guantánamo in order to determine whether their detentions are lawful. Some commentators, including some judges and legislators, have suggested that the courts are struggling to take on an essentially legislative project, and that the courts are in desperate need of further instruction from Congress. On the contrary, courts are well suited to meet this challenge. Their competence in developing evidentiary and procedural rules comes from hard-won experience. District Court judges are on the front lines, applying the law to complex facts and balancing the competing needs of litigants. Because of their institutional competence, courts have historically developed rules of procedure and evidence. This was true under the common law, and it is true of the Federal Rules.

Jennifer Turner, The Human Rights Project, the American Civil Liberties Union

It boggles the mind that the military judge could find that Khadr was not coerced and gave these statements to interrogators voluntarily. Khadr, then 15 years old, was taken to Bagram near death, after being shot twice in the back, blinded by shrapnel, and buried in rubble from a bomb blast. He was interrogated within hours, while sedated and handcuffed to a stretcher. He was threatened with gang rape and death if he didn't cooperate with interrogators. He was hooded and chained with his arms suspended in a cage-like cell, and his primary interrogator was later court-martialed for detainee abuse leading to the death of a detainee. During his subsequent eight-year (so far) detention at Guantánamo, Khadr was subjected to the "frequent flyer" sleep deprivation program and he says he was used as a human mop after he was forced to urinate on himself.

In closing arguments before the judge's ruling, Khadr's sole defense lawyer, Lt. Col. Jon Jackson, told the judge, "Sir, be a voice today. Tell the world that we actually stand for what we say we stand for."

Though President Obama promised that coerced evidence would not be used against detainees in the military commissions, today's ruling suggests that as a country, we stand for abusing a 15-year-old teenager into confessing, and using those confessions against him in an illegitimate proceeding.