National Public Radio's Ari Shapiro has summarized the "compromise" legislation arrived at between the White House and the Senate concerning torture, military tribunals and related matters. Shapiro, NPR's "Justice Reporter," writes,

The [military] tribunals won't admit evidence obtained through torture. Evidence obtained through coercive interrogation tactics that the Bush administration doesn't consider torture (such as "waterboarding," where a detainee is made to believe he's drowning, or "stress positions," where a detainee is made to sit or stand in a painful position for extended periods of time) may be used under some circumstances.

The bill also addresses statements that were obtained before Congress passed a ban on coercive interrogation tactics in 2005. In those instances, a judge must rule on the admissiability of the statement, determining if it is "reliable and possessing sufficient probative value," and if it serves "the interests of justice."

If the statement was obtained after Congress passed the 2005 ban, the military judge must decide whether it meets the above two criteria and must also find that "the interrogation methods used to obtain the statement do not violate the cruel, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments to the Constitution." [links added]

If Shapiro has his facts straight, this is breathtaking, yet no one seems to have noticed.

Let me rephrase: Any use of a defendant's statements (made after the 2005 "ban" on coercive interrogation) that are alleged to have been obtained under duress must either be disallowed as evidence or must be held to be constitutional.

In such case—where the government has used techniques that the Bush administration does not consider "torture" yet are clearly coercive—here are the possibilities as I see them—

• Not wishing a court review of the techniques involved in acquiring the detainee's statements and lacking any other evidence to proceed against the detainee, the government simply continues to detain the suspect indefinitely. (There are no "speedy trial" provisions in the "compromise.")
   
• The government brings a case against the accused to a tribunal in which either
   
• The government voluntary withholds the defendant's statements from the evidence, or
   
• The government submits the defendant's statements in evidence, anticipating a possible challenge. Assuming the admissibility (on other grounds) and relevance of the evidence, the judge must then decide if the coercive techniques used to obtain the statements are constitutional.
  
  Now here's where it gets interesting:
   
  • If the judge finds that the techniques are not constitutional (amount to torture), no big deal. The "compromise" legislation pretty much exonerates the government no matter what it does. The only consequence would be that the evidence in question is disallowed.1
     
  • But what if the judge finds the coercive technique, or techniques, constitutional? Would that not imply that such techniques are constitutional if used by the police to obtain evidence for ordinary trial? Is it possible for the Constitution to discriminate among persons as to what is cruel and inhumane?

Pshaw! you say. That's an impossible outcome. No judge would ever issue such a ruling in favor of the government. To that objection I can only suggest that you check out some of the newly minted federal judges.

But you may be right. Perhaps neither the administration nor the judiciary will ever let such a hearing take place. Yet if that is so, the inevitable consequence is that many—perhaps most—detainees will never be brought to trial.

Which way do you prefer it? Endless detention of suspects without trial or the possibility of court approval of coercive (torturous) techniques of interrogation. To be sure, torture has been in use by the police for some time. Will this new legislation ultimately have the effect of making it legal?

Previous post
Mayhem and torture: Taking the scenic route (9/22/06)

Related posts
Evidence from torture OK, says the government (12/2/04)
Why are we torturing people? (4/4/05)

Tags: * torture tribunal military tribunal legislation Senate Congress Bush administration Geneva Convention human rights war crime Article 3 evidence rules of evidence coercion self-incrimination detention detainee trial compromise