The trial of Al Qaeda suspects in the US big news at the moment of course – with Khalid Sheikh Muhammad and others having appeared before a military tribunal on Friday. I’m interested, though, in this Federal Court of Appeals case involving another suspect and US citizen Ahmed Omar Abu Ali – he, at least, is being prosecuted in the ordinary civil courts.
Abu Omar claims he was tortured in Saudi Arabia before confessing to various terrorist offences – his Saudi confessions were key evidence in his trial. Both the court below and the Appeals Court rejected his torture claims and admitted the evidence, but Abu Omar also argued that, because his Saudi interrogators did not appear in court to give evidence about his confession – they gave evidence from Saudi via a two-way video link – his trial breached the sixth amendment to the Consitution, which says that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.
Discussion of this issue starts at page 32 of the appeal judgment. The court ruled that it was lawful to admit the evidence via videolink, relying on the Supreme Court’s ruling in Maryland v Craig which permits departure from physical face-to-face cross-examination in the defendant’s presence, in some circumstances, and that the trial judge adopted procedures that protected Abu Ali’s right to be confronted by witnesses to the greatest extent possible.
I’m not sure the videolink was quite good enough to allow everyone to be heard, both ways, as well as seen, but it strikes me that a link that really was as good as that might well actually be confrontation – not a permissible derogation from it. And in fact the right to be confronted is a one-way right, applying the text strictly; it’s not the same as a right to confront. So why isn’t a one-way link enough to satisfy the amendment in full?
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