The Military Commissions Act, Coerced Confessions, and the Role of the Courts

Abstract

The Military Commissions Act of 2006 (MCA) challenges a core principle of American justice: that courts should not admit evidence yielded by coerced interrogation. In deciding cases under the MCA, courts need not abandon this principle. In many cases, courts will be able to vindicate concerns under the Due Process Clause, Fifth Amendment, and Sixth Amendment Confrontation Clause by invoking the MCA's requirement that admissible evidence be reliable. In other cases, courts will have to assert their supervisory power to protect the integrity of judicial proceedings. Finally, courts can rely on a pragmatic conception of the extraterritorial application of fundamental rights that extends from The Insular Cases to Justice Harlan's concurrence in Reid v. Covert and Justice Kennedy's concurrence in United States v. Verdugo-Urquidez.