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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."
Leon asked if there were any restrictions on
using evidence produced by torture.
Boyle replied the United States would never
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.
Evidence Based on Torture
Evidence based on torture is not admissible in
U.S. 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."
Leon asked if 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 CSRT panels, composed of three military
officers, usually colonels or lieutenant colonels,
were set up after the Supreme Court ruled in June
that the detainees could ask U.S. courts to see to
it that they had a proceeding in which to
challenge their detention. They have finished
reviewing the status of 440 of the prisoners 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 and the detainee lawsuits
should be thrown out.
Noting that detainees cannot have lawyers at
the CSRT proceedings and cannot see any secret
evidence against them, attorney Wes Powell argued
"there is no meaningful opportunity in the
CSRTs to rebut the government's claims."
Leon asked, however, "if the judiciary
puts its nose into this, won't that lead us into
reviewing decisions about who to target and even
into the adequacy of information supporting the
decision to seize a person?"
Leon said he thought an earlier Supreme Court
ruling would limit judges to checking only on
whether detention orders were lawfully issued and
detention review panels were legally established.
Leon and Judge Joyce Hens Green, who held
another hearing Wednesday on detainees' rights,
said they will try to rule soon on whether the 59
detainees can proceed with their lawsuits.
© 2004 Associated Press.
ORIGINAL
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