The Set-Up

Torture Can Be Used to Detain U.S. Enemies

Government Says Evidence Gained by Torture Can Be Used to Detain Enemy Combatants

The Associated Press - December 3, 2004

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 Guantánamo 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 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."

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."

And so on and so forth….

We also learn that evidence based on torture is not admissible in US 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 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."

Well, the world has changed – at least for the guys we ask to run things for us.

The Reaction –

Andrew Sullivan -

Evidence procured by torture is now sufficient to detain "enemy combatants" at Gitmo.  Prisoners "have no constitutional rights enforceable in this court."  Slowly, we are beginning to piece together what the Bush administration has set up - with little public debate.  The government can detain prisoners without naming them, it can use methods that are "inhumane," it can use evidence procured by torture, and anyone the government deems an "enemy combatant" is beyond the recourse of constitutional protection.  Some of this might be defensible, although I doubt whether I'd agree. But the lack of candor, the absence of real debate (neither Gitmo nor Abu Ghraib came up in any of the presidential debates), and the vagueness of many of the rules are surely worrying in the extreme.

Josh Marshall -

I think Andrew Sullivan is just right in his run-down of what is now emerging about the system of secrecy, torture and extra-constitutional power the Bush administration has set up at Gitmo and other far-flung undisclosed locations around the world.

Like Andrew (at least I suspect this is so, though he can speak for himself), I'm a good deal less doctrinaire on civil liberties issues than, I suspect, many of the readers of this site.  As Justice Jackson put it, the constitution is not a suicide pact.  And a lot of the things that were done in the immediate aftermath of 9/11 were, I think, justifiable in theory, if not always in execution.

But what stands out about this administration is not the willingness to sacrifice certain civil liberties safeguards in the face of demonstrable necessity, but the eagerness and almost delight in doing so.  Having walled themselves off from the more harmless varieties, this is apparently the one form of transgression the Ashcroftites cannot resist.

Most telling is the addiction to secrecy.  The clearest, or rather the most basic, test of whether strong measures are compatible with a free society is whether the government is willing to be open with the public about what it is doing in their name.  By every measure, this administration is not.

But Josh, no one wants an explanation – they just want things taken care of – and some things are best not to know.

Molly Ivins -

It is both peculiar and chilling to find oneself discussing the problem of American torture. I have considered support of basic human rights and dignity so much a part of our national identity that this feels as strange as though I'd suddenly become Chinese or found Fidel Castro in the refrigerator.

One's first response to the report by the International Red Cross about torture at our prison at Guantánamo is denial.  "I don't want to think about it; I don't want to hear about it; we're the good guys, they're the bad guys; shut up.  And besides, they attacked us first."

But our country has opposed torture since its founding.  One of our founding principles is that cruel and unusual punishment is both illegal and wrong.  Every year, our State Department issues a report grading other countries on their support for or violations of human rights.

So?  It seems there are some things we must do, and we don’t want to hear.  But Ivins disagrees –

Our country, the one you and I are responsible for, has imprisoned these "illegal combatants" for three years now. What the hell else do we expect to get out of them? We don't even release their names or say what they're charged with - whether they're Taliban, Al Qaeda or just some farmers who happened to get in the way (in Afghanistan, farmers and soldiers are apt to be the same).

If this hasn't been established in three years, when will it be? How long are they to be subjected to "humiliating acts, solitary confinement, temperature extremes, use of forced positions"?

In the name of Jesus Christ Almighty, why are people representing our government, paid by us, writing filth on the Korans of helpless prisoners?  Is this American?  Is it Christian?  What are our moral values?  Where are the clergymen on this?  Speak out, speak up.

Well, that’s just not going to happen.  Christianity has been redefined – see December 5, 2004 - Tolerance is for sissies...

But Molly won’t let it go.

I suppose one could argue that we're fighting people who chop off the heads of their prisoners, so there.  Since when have we taken up Abu al-Zarqawi as a role model?  In the famous hypothetical example, you might consider torture justified if you had a terrorist who knew where a bomb was planted that was about to go off.  But three years later?  Some people have got to be held accountable for this, and that would include Congress.

My question is: What are you going to do about this?  It's your country, your money, your government.  You own it, you run it, you are the board of directors.  They are doing this in your name.  The people we elect to public office do what you want them to.  Perhaps you should get in touch with them.

I’m afraid most people won’t.  We want it done, because we somehow feel it might be sort of useful.  But this survival toll, or whatever it is, is clearly morally and legally wrong, and turn us into monsters – so we just won’t think about it.

There’s not much more to say.  This has been covered in the pages -

• May 16, 2004 Torture and morality and all that sort of thing...
• August 1, 2004 - Using the law to keep delusions under control...
• October 3, 2004 - The guy who used to coach high school wresting has a modest proposal...
• September 5, 2004 - Have you no shame, sir?
• June 13, 2004 - Things that just couldn't be so ...
• June 20, 2004 - The Big Stories of the Week. Not Really News. Just Confirmations.
• May 2, 2004 - It is all a matter of having the right attitude...
• June 13, 2004 - Ask a lawyer, get an answer...
• May 16, 2004 - Responsibility - Military Style... and legal issues

Well, there are more than fifty other references, and none of it matters.