The Guardian December 8, 2004


US okays evidence gained through torture

Last week US military panels reviewing the detention of 
prisoners at the naval base at Guantanamo Bay were given the 
green light to use evidence gained by torture to keep them 
imprisoned.

The announcement was made by Principal Deputy Associate Attorney 
General Brian Boyle during a hearing of a US District Court into 
lawsuits brought by 550 prisoners who have been held without 
charge on Guantanamo for up to three years. Answering allegations 
that some foreigners were being held solely on the basis of 
evidence obtained under torture, Boyle argued that the detainees 
"have no constitutional rights enforceable in this court."

Boyle also insisted that there is nothing in the US Constitution 
to prevent the military's Combatant Status Review Tribunals 
(CSRTs) from relying on evidence of "questionable provenance" if 
those in authority were to deem it reliable.

Answering questions from US District Judge Richard J Leon, Boyle 
said that the US would never adopt policies on evidence that 
could have prevented attacks like that September 11. However, as 
Harvard Law Professor and former deputy US Attorney General 
Philip B Heyman has pointed out: "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".

Other 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", the professor 
added.

Torture is illegal in the US and violates its much-vaunted 
standards of due process. Boyle insists, though, that evidence 
gained under torture would necessarily come from foreign sources 
and refuses to concede (despite mounting evidence) that the US 
military engages in torture. He maintains that allegations of 
mistreatment of prisoners at Guantanamo would be passed through 
the chain of command and be dealt with. Boyle noted that some US 
soldiers had been disciplined for misconduct at the base, 
including a female interrogator who removed her top during 
questioning.

However, the International Committee of the Red Cross takes a 
dimmer view. It handed a confidential report to the Bush 
Administration that insists that even the regular treatment of 
detainees on Guantanamo is tantamount to torture.

Boyle would have it that the existence and operation of the CSRT 
argues against claims of mistreatment of detainees. The panels  
made up of three military officers  were set up in June when 
the Supreme Court ruled that detainees could ask US courts to 
challenge their detention. They have just finished reviewing 440 
cases and released just one detainee.

Detainees cannot have a lawyer at CSRT proceedings and are not 
able to see secret evidence against them.

At the military's annual administrative review, the authorities 
determine whether the detainee still presents a danger to the US 
but there is no review of the "enemy combatant" status. So far 
there have been only 161 such administrative reviews.

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