I haven't followed the DADT repeal situation that closely, though I have long been in support of those working on it.
But I was blown away when I heard about the steps that Secretary Gates is taking to make the policy "more humane." When he announced yesterday what they had been doing up until now, I was outraged as a law professor and as a human being concerned with due process and fairness.
If the military's "justice system" has been using these unjust methods as a part of Don't Ask, Don't Tell policy, then it's pretty obvious that the policy is itself unjust. Putting in a few tweaks is not going to make an unjust policy into a just one. It's putting icing on a turd.
It sounds as if the military has been running medieval courts of the sort ridiculed by Monty Python 35 years ago. (Holy Mazola, has it been that long?) A video of that is after the jump. In light of how the military has been treating soldiers accused under DADT, the video isn't really funny.
I was stunned by the changes they are going to make. From the sound of it, they have been using evidence that has been banned since the Middle Ages: information without testimony under oath, hearsay and attorney-client privileged information.
They will now require testimony made under oath. Excuse me, but what were you using before? Witness testimony under oath is the basic building block of a trial of any sort. The idea that trials can proceed without testimony of witnesses under oath is beyond shocking. It's like saying that they will no longer allow the use of psychics in trials. It means statements were admitted into evidence without any affirmation that they were the truth according to personal knowledge of the facts. It suggests that information was used without any opportunity to cross-examine the provider of that information.
No oath means the evidence isn't subject to traditional tests of reliability. And in my experience as a litigator for over a decade, most people routinely lie or exaggerate in court proceedings. When i say most people, I mean 99%. After you're done cross-examining them, generally 25% of what they said is left as having any sort of reliability.
They're no long going to use hearsay evidence. Legally, hearsay refers to information from a third party who isn't available for cross-examination in court. Were they using that? No other court system in the country permits use of hearsay, except in very few specified exceptions. It's just unreliable. It's like letting someone whisper in the judge's ear, and not letting anyone else hear or question what was said.
They're no longer going to use confidential information provided to your lawyer. Were they using that? What did they think "confidential" meant? I call it abuse of process. No other court system in the country permits use of privileged statements made to a lawyer. It makes it impossible to assist in your own defense because anything you say to your lawyer can come out. It means your lawyer is working with one hand tied behind their back. It's just wrong.
These are violations of due process, and there's just no other way to say it. To think our military operates like a giant kangaroo court has to shock the conscience of any right-thinking person.
It reminds me of this scene from Monty Python and the Holy Grail. While witch trials occurred a long time ago, and all of the horror of them has been leached out with the passage of time, so that we can now laugh about it, it sounds as if the military has been doing essentially this to service members. Now that's not funny.