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The Differences Between War and Law Enforcement

Vice Adm. Bruce MacDonald, the Navy judge advocate general, has some problems with the Obama administration’s desire to place a voluntariness standard on

Jul 31, 2020
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Vice Adm. Bruce MacDonald, the Navy judge advocate general, has some problems with the Obama administration’s desire to place a “voluntariness” standardon evidence entered into military commissions. “This is an area where I do disagree with the administration and I think the [Senate Armed Services] committee got it right,” MacDonald said. There’s a fundamental difference, he explains, between a “voluntariness standard that grew up in a law enforcement environment.” If a soldier kicks in a door in Afghanistan and acquires a statement from someone, “that’s inherently coercive,” and so introducing a voluntariness standard for statements to be entered into evidence would have no choice but to eliminate such statements and is therefore too restrictive.
MacDonald prefers a “totality of evidence” standard, under which closure to the point of capture, a commission judge would look more to “corroboration” of defendant’s statement as the basis for evaluating it, and as time passes — “six months, a year,” the admiral said — then the judge could lean more on a voluntariness standard, since there’s no longer an “inherently coercive” environment.
Kris and Johnson say they see the wisdom of a totality-of-evidence standard, but say they don’t think that requiring anything other than a voluntariness standard will withstand judicial review. “This is really coming down to that particular [constitutional] right, the voluntariness standard,” MacDonald concedes. “I think we really can reach some common ground, [in terms of] requiring a balancing test, and what the administration’s position is right now.”
Dexter Cooke

Dexter Cooke

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Dexter Cooke is an economist, marketing strategist, and orthopedic surgeon with over 20 years of experience crafting compelling narratives that resonate worldwide. He holds a Journalism degree from Columbia University, an Economics background from Yale University, and a medical degree with a postdoctoral fellowship in orthopedic medicine from the Medical University of South Carolina. Dexter’s insights into media, economics, and marketing shine through his prolific contributions to respected publications and advisory roles for influential organizations. As an orthopedic surgeon specializing in minimally invasive knee replacement surgery and laparoscopic procedures, Dexter prioritizes patient care above all. Outside his professional pursuits, Dexter enjoys collecting vintage watches, studying ancient civilizations, learning about astronomy, and participating in charity runs.
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