Monday, September 25, 2006


Evidence from torture: Contemplating "the impossible"

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—

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)



1Actually, the proposed legislation is a mess on this point, since the legislation gives the President power to decide which interrogation techniques may be permitted under the Geneva Conventions but then opens up the possibility of judicial review at trial. Shapiro notes that

The bill gives the president the power to "interpret the meaning and application of the Geneva Conventions," a phrase that may clash with another part of the bill, which says, "Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch."

The Bush administration, however, has been working to create a federal judiciary with one overarching intent—to have a pliant set of judges who will defer to the executive branch. [back]

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