Friday, December 03, 2004

Military panels can use proof gained by torture

U.S. military panels reviewing the detention of foreigners as enemy combatants are allowed to use evidence gained by torture in deciding whether to keep them imprisoned at Guantanamo Bay, Cuba, the government conceded in court Thursday.

The acknowledgment by Principal Deputy Associate Attorney General Brian Boyle came during a U.S. District Court hearing on lawsuits brought by some of the 550 foreigners imprisoned at the U.S. naval base in Cuba. The lawsuits challenge their detention without charges for up to three years so far.

Attorneys for the prisoners said some were held solely on evidence gained by torture, which they said violated fundamental fairness and U.S. due-process standards. But Boyle argued in a similar hearing Wednesday that the prisoners "have no constitutional rights enforceable in this court."

U.S. District Judge Richard Leon asked whether a detention would be illegal if it were based solely on evidence gathered by torture, because "torture is illegal. We all know that."

Boyle replied that if the military's combatant status-review tribunals "determine that evidence of questionable provenance were reliable, nothing in the due-process clause prohibits them from relying on it."

Leon asked whether there were any restrictions on using evidence produced by torture.

Boyle replied the United States would never adopt a policy that would have barred it from acting on evidence that could have prevented the Sept. 11, 2001, terror attacks even if the data came from questionable practices like torture by a foreign power.

Evidence gained from torture is not admissible in U.S. courts.

"About 70 years ago, the Supreme Court stopped the use of evidence produced by third-degree tactics largely on the theory that it was totally unreliable," Harvard Law Professor Philip Heymann, a former deputy U.S. attorney general, said in an interview.

I'm not sure which part is more upsetting -- the fact that this subject is being discussed at all, or the fact that the immorality of torture isn't. And of course there is the purely self-interested perspective that wonders why these fools can't see the connection between this discussion and torture of Americans at the hands of our enemies.



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