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U.S. Can Use Evidence Gained by Torture
By MICHAEL J. SNIFFEN, Associated Press Writer
WASHINGTON - Evidence gained by torture can be used by
the U.S. military in deciding whether to imprison a
foreigner indefinitely at Guantanamo Bay, Cuba, as an
enemy combatant, the government concedes.
Statements produced under torture have been
inadmissible in U.S. courts for about 70 years. But
the U.S. military panels reviewing the detention of
550 foreigners as enemy combatants at the U.S. naval
base in Cuba are allowed to use such evidence,
Principal Deputy Associate Attorney General Brian
Boyle acknowledged at a U.S. District Court hearing
Thursday.
Some of the prisoners have filed lawsuits challenging
their detention without charges for up to three years
so far. At the hearing, Boyle urged District Judge
Richard J. Leon to throw their cases out.
Attorneys for the prisoners argued that 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 detainees "have no constitutional
rights enforceable in this court."
Leon asked whether a detention based solely on
evidence gathered by torture would be illegal, 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 (of the Constitution) prohibits
them from relying on it."
Leon asked whether there were any restrictions on
using torture-induced evidence.
Boyle replied that the United States never would 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.
Several arguments underlie the U.S. court ban on
products of torture.
"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 B. Heymann, a former deputy U.S.
attorney general, said in an interview. Subsequent
high court rulings were based on revulsion at "the
unfairness and brutality of it and later on the idea
that confessions ought to be free and uncompelled."
Leon asked whether U.S. courts could review detentions
based on evidence from torture conducted by U.S.
personnel.
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.
The International Committee of the Red Cross said
Tuesday it has given the Bush administration a
confidential report critical of U.S. treatment of
Guantanamo detainees. The New York Times reported the
Red Cross described the psychological and physical
coercion used at Guantanamo as "tantamount to
torture."
The combatant status review tribunals comprise three
colonels and lieutenant colonels. They were set up
after the Supreme Court ruled in June that the
detainees could ask U.S. courts to see to it they had
a proceeding in which to challenge their detention.
The panels have reviewed 440 of the prisoners so far
but have released only one.
The military also set up an annual administrative
review which considers whether the detainee still
presents a danger to the United States but doesn't
review enemy combatant status. Administrative reviews
have been completed for 161.
Boyle argued these procedures are sufficient to
satisfy the high court.
Noting that detainees cannot have lawyers at the
combatant status review proceedings and cannot see any
secret evidence against them, detainee attorney Wes
Powell argued "there is no meaningful opportunity in
the (proceedings) to rebut the government's claims."
Leon suggested that if federal judges start reviewing
the military's evidence for holding foreign detainees
there could be "practical and collateral consequences
... at a time of war."
And he suggested an earlier Supreme Court ruling might
limit judges to checking only on whether detention
orders were lawfully issued and review panels were
legally established.
Leon and Judge Joyce Hens Green, who held a similar
hearing Wednesday, said they would try to rule soon on
whether the 59 detainees may proceed with their
lawsuits.
By MICHAEL J. SNIFFEN, Associated Press Writer
WASHINGTON - Evidence gained by torture can be used by
the U.S. military in deciding whether to imprison a
foreigner indefinitely at Guantanamo Bay, Cuba, as an
enemy combatant, the government concedes.
Statements produced under torture have been
inadmissible in U.S. courts for about 70 years. But
the U.S. military panels reviewing the detention of
550 foreigners as enemy combatants at the U.S. naval
base in Cuba are allowed to use such evidence,
Principal Deputy Associate Attorney General Brian
Boyle acknowledged at a U.S. District Court hearing
Thursday.
Some of the prisoners have filed lawsuits challenging
their detention without charges for up to three years
so far. At the hearing, Boyle urged District Judge
Richard J. Leon to throw their cases out.
Attorneys for the prisoners argued that 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 detainees "have no constitutional
rights enforceable in this court."
Leon asked whether a detention based solely on
evidence gathered by torture would be illegal, 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 (of the Constitution) prohibits
them from relying on it."
Leon asked whether there were any restrictions on
using torture-induced evidence.
Boyle replied that the United States never would 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.
Several arguments underlie the U.S. court ban on
products of torture.
"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 B. Heymann, a former deputy U.S.
attorney general, said in an interview. Subsequent
high court rulings were based on revulsion at "the
unfairness and brutality of it and later on the idea
that confessions ought to be free and uncompelled."
Leon asked whether U.S. courts could review detentions
based on evidence from torture conducted by U.S.
personnel.
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.
The International Committee of the Red Cross said
Tuesday it has given the Bush administration a
confidential report critical of U.S. treatment of
Guantanamo detainees. The New York Times reported the
Red Cross described the psychological and physical
coercion used at Guantanamo as "tantamount to
torture."
The combatant status review tribunals comprise three
colonels and lieutenant colonels. They were set up
after the Supreme Court ruled in June that the
detainees could ask U.S. courts to see to it they had
a proceeding in which to challenge their detention.
The panels have reviewed 440 of the prisoners so far
but have released only one.
The military also set up an annual administrative
review which considers whether the detainee still
presents a danger to the United States but doesn't
review enemy combatant status. Administrative reviews
have been completed for 161.
Boyle argued these procedures are sufficient to
satisfy the high court.
Noting that detainees cannot have lawyers at the
combatant status review proceedings and cannot see any
secret evidence against them, detainee attorney Wes
Powell argued "there is no meaningful opportunity in
the (proceedings) to rebut the government's claims."
Leon suggested that if federal judges start reviewing
the military's evidence for holding foreign detainees
there could be "practical and collateral consequences
... at a time of war."
And he suggested an earlier Supreme Court ruling might
limit judges to checking only on whether detention
orders were lawfully issued and review panels were
legally established.
Leon and Judge Joyce Hens Green, who held a similar
hearing Wednesday, said they would try to rule soon on
whether the 59 detainees may proceed with their
lawsuits.
