Thursday, December 02, 2004


Evidence from torture OK, says the government

[So much for a day off. This is too important.]

Hearings are being held before federal judge Richard J. Leon on lawsuits challenging the detention of the inmates in Guantánamo. Principal Deputy Associate Attorney General Brian Boyle is representing the government.

The defense has claimed that some of the detainees are being held on no other evidence than what was obtained by the torture of other detainees. The judge inquired.

According to the AP,

U.S. District Judge Richard J. Leon asked if 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 (or CSRTs) "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."

Here's a little conundrum: If the only evidence is evidence produced by torture, how could a tribunal determine the reliability of the evidence? By definition, the only evidence regarding the detainee has been produced by torture. But any determination of reliability must depend upon other corroborating evidence, which by definition does not exist. Hence, what can be the factual basis of determining reliability? I cannot see any basis for such a determination other than the personal beliefs of the tribunal members regarding the efficacy of torture itself.

Leon asked if 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, terrorist attacks even if the data came from questionable practices like torture by a foreign power.

Short form: We accept evidence produced by torture. 9/11! 9/11! 9/11! And besides, somebody else did it. (Notice that torture is not an "illegal" practice, merely "questionable.")

Then the judge asked of Boyle the government's opinion on the appropriateness of judicial review in cases where the detention is based on torture. Boyle evaded the question by denying that any torture had been conducted by Americans—

Boyle said torture was against U.S. policy and any allegations of it would be "forwarded through command channels for military discipline." He added, "I don't think anything remotely like torture has occurred at Guantanamo" but noted that some U.S. soldiers there had been disciplined for misconduct, including a female interrogator who removed her blouse during questioning.

No. I was thinking more of the American soldier who was placed in a cell unbeknownst to the guards for a "training exercise." The soldier was almost killed and now suffers serious and lasting disabilities.

But thanks for reminding the court about the topless interrogator. I expect we'll be hearing this quote repeated on Rush Limbaugh in a day or two. The government's message is that with torturers like ours, why, the men should be clamoring to stay in Guantánamo!

One of the detainees' attorneys summed up the situation faced by the detainees—

Noting that detainees cannot have lawyers at the CSRT proceedings and cannot see any secret evidence against them, attorney Wes Powell argued "there is no meaningful opportunity in the CSRTs to rebut the government's claims."

Didn't legal practices such as these help set off a violent rebellion a couple of centuries ago? Where was it? It's on the tip of my tongue.

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