“What a strange title for a post,” you might be thinking.  I am neither a lawyer nor a prophet, so I cannot speak with absolute or infallible authority on the subject of rules of evidence, especially when it comes to the legal requirements.  However, I have followed the Hamdania case with close interest given that (a) I have thought about the issues before during seminary training, and (b) my son will soon deploy to Iraq.

In my last post on this subject, “Premature to Investigate Evidence for Hamdania Marines,” I noted that the prosecution stated that there was no assurance that anyone from Iraq would testify at the trials of the seven Marines and one Navy Corpsman, since there was no protocol or procedure to cause this to occur.  At this point, seminary training kicked in and I began to think about the moral requirements for evidence; after all, these men are on trial for their lives.  As if anyone needed to be reminded, this is a death penalty case. They are on trial for murder.

To begin with I will quote R. J. Rushdoony, The Institutes of Biblical Law.  After citing Deut 17:6, Deut 19:15, Num. 35:30, Matt. 18:15-16, and 2 Cor. 13:1, Rushdoony says:

As noted previously, we are not under any moral obligation to tell the truth to an enemy seeking to harm or destroy us.  The duty to tell the truth is reserved for normal relationships which are within the framework of law, and to the proceedings of courts of law in church, state, and other institutions.

Even here, however, there are limitations on the power of the court or the demands of other persons.  The Biblical law of testimony does not permit torture or coerced confessions.  Voluntary confession is possible, but two or more witnesses are required for conviction.  More strictly, confession is never cited in the law; its place in a court was apparently only in connection with corroborating evidence.  Thus Achan’s confession required confirming evidence before he was sentenced and executed (Joshua 7:19-26).  The voluntary aspect of Achan’s confession must be noted.  Biblical law preserves the integrity of the individual against forced confession; the right of citizens to be protected from the power of the state to compel their self-incrimination does not appear outside of the Biblical legal tradition.  The Fifth amendment to the U.S. Constitution of 1787 embodied this protection: no person can be placed in double jeopardy, “nor shall be compelled, in any criminal case, to be a witness against himself.”

The UK has similar rules regarding confession and evidence, due in no small part to their Christian heritage and tradition.  Biblically, we see that compelling, consistent (two or more), and public witness to the charges against the accused is necessary for conviction.  Further, the penalty for those guilty of perjury is the same punishment as would have been inflicted on the defendant had he been found guilty, thus setting a high bar for testimony (Greg Bahnsen, Theonomy in Christian Ethics, page 556).  Morally speaking, the requirement to testify truthfully in situations of testimony is literally a matter of life and death.  People speaking, and speaking truthfully and consistently, is a requirement for finding the defendant guilty, and the punishment for bearing falsehood is severe.  However, we learn from the prosecutors of the case against the Hamdania Marines that there might be no one appearing on the witness stand to accuse the Marines of anything.

Just as troubling is what might happen if the “witnesses” did show up to testify.  In my “Iraq: Land of Lies and Deceipt,” I cited an article that quoted a U.S. contractor who said:

I’ve been in Iraq for about 18 months now performing construction management. It is simply not possible for me to exaggerate the massive amounts of lies we wade through every single day. There is no way – absolutely none – to determine facts from bulls*** ….

It is not even considered lying to them; it is more akin to being clever – like keeping your cards close to your chest. And they don’t just lie to westerners. They believe that appearances–saving face–are of paramount importance. They lie to each other all the time about anything in order to leverage others on a deal or manipulate an outcome of some sort or cover up some major or minor embarrassment. It’s just how they do things, period.

I’m not trying to disparage them here. I get along great with a lot of them. But even among those that I like, if something happens (on the job) I’ll get 50 wildly different stories, every time. There’s no comparison to it in any other part of the world where I’ve worked. The lying is ubiquitous and constant.

In addition to “saving face,” there are other possible reasons for dishonesty.  Blood money.  It is paid to compensate the families or tribes of people who have been killed, and more specifically, are the victims of collateral damage.  It is custom and standard practice in Iraq, limited to non-combatants by the U.S., and there is little doubt that refusal to pay this blood money to some of the victims of the Haditha incident created the existence of “witnesses” to the “atrocities” in Haditha.  It is possible that money figures into the Hamdania case as well.

As to the fact that this approach (i.e., this high bar for testimony and evidence in the western tradition) means that the job of investigators and prosecutors is more difficult, we have to answer that this is indeed the case, and it is the case by intention.  In fact, the moral rules of evidence that I am discussing contemplate unrewarding outcomes of the application these rules:

Believe it or not, the Bible itself teaches that the accused is innocent until proven guilty. This presumption of innocence is not an artifice of liberal twentieth century jurisprudence. It is biblical. According to biblical justice, if only one witness could testify to the guilt of the accused, the accused walked free. Biblical justice, then, contemplates the chance that a truly guilty criminal might go unpunished. Why? Better that one or more truly guilty men go unpunished than that one innocent man be punished for a crime he didn’t commit. To safeguard against punishing the innocent, the Bible instructs us that the accused is innocent until proven guilty.

We live in an increasingly immoral society.  The answer to this immorality is not more severe application of iterrogation techniques or the violation of rights recognized in the U.S. Constitution.  The answer to social immorality is to be found in society’s life with God, not its life with the state.  The state cannot legitimately replace God.

Dan Riehl has outlined a number of troubling things about the alleged event.  A number of things don’t add up about the accounts to date.  Notwithstanding the troublesome accounts of the witnesses, and notwithstanding the moral requirements of two or more witnesses testifying to exactly the same thing, and notwithstanding the deceiptful tradition in which the Iraqis have been raised, and notwithstanding the questionable interrogation techniques used to obtain these “confessions,” the Camp Pendleton eight are still in the brig — and it is possible that no witnesses will show up at the trial, while “confessions” are used where no one was present except the interrogator.

Does anyone else out there find this puzzling and troubling?

Prior:

• Hamdania (Pendleton 8) Update
• Perplexing Lack of Official Cooperation in Hamdania Case
• Camp Pendleton 8 Update
• Jodka’s Lawyer Just Interviewed on O’Reilly
• The Camp Pendleton 8
• My Phone Discussion with Camp Pendleton and Marines in Shackles