The NYT has an Op-ed piece by Ruth Wedgwood supporting the detention of Jose Padilla as an enemy combatant and criticising an Appeals Court decision that he should either be charged or released. Wedgwood doesn’t mention many of the more disturbing aspects of the Padilla case such as the fact that he is being held incommunicado and that the government disclaims any obligation to announce the arrest/disappearance of enemy combatants, even US citizens on US soil.
But what struck me was the central claim that such processes are necessary because
Federal rules of evidence do not permit the consideration of intelligence reports as proof for criminal convictions, no matter how reliable the informant
. Wedgwood doesn’t spell this out, and it seems surprising to me that there exists such a general principle. I’d be interested to hear from anyone better informed regarding the US legal system on this topic.
Supposing this is correct, my immediate reaction is that it would be better to relax the rules of evidence in terrorism cases than to accept indefinite detention without trial. However, I’d be interested to hear the views of others on this.
John Quiggin 
The standard disclaimers apply — I have no background in jurisprudence — but how I took that statement was, “an intelligence source becomes useless after testifying in court”. Rereading now, I realize that is probably not what it meant. But it does seem like a valid concern to me; if the trial is to be a meaningful process then the testimony must be open to both prosecution and defense, meaning the witness’s identity will not be a secret any longer. So the source will not be able to continue in his old existence, giving information to the US. I don’t know if anything could be done about this.
No security argument justifies imprisoning anybody without trial in peacetime. In wartime, there still must be a trial (eg of a suspected spy), but it may be in secret and rules of evidence go out the window. It seems to me that, fundamentally, the US is importing wartime procedures into peacetime.
Merry Christmas all,
Gordon
Federal rules of evidence do not permit the consideration of intelligence reports as proof for criminal convictions, no matter how reliable the informant
The simple answer is that under American law, such reports would be hearsay — an out-of-court statement used to prove the truth of the matter asserted. There are a number of exceptions to the hearsay rule; such reports would not appear to fall within any of them.
To elaborate a bit, here are a few examples:
“Bob said that he saw the defendant pull the trigger.” Hearsay. If you want Bob’s testimony, call him as a witness. If Bob is not available to testify, the testimony may be admissible under the so-called “declarant unavailable” exception if you can show that there is reason to believe the testimony is reliable. The precise showing that you would have to make depends on what court you’re in. There are limitations on the scope of the “declarant unavailable” exception that arise from the Sixth Amendment right to confront one’s accuser. Intelligence reports would probably not be admissible.
“The defendant said that he pulled the trigger.” Not hearsay because it is a “party admission” — the rationale being that you can’t expect parties to repeat in court out-of-court statements that are harmful to their position.
“Bob told the defendant the gun was loaded.” Not admissible to prove that the gun was actually loaded. However, it might be admissible to show that the defendant knew the gun was loaded. (This is the “truth of the matter asserted” piece of the definition of hearsay.”)