Posted on 12/04/2004 11:40:53 AM PST by Askel5
| Torture Can Be Used to Detain U.S. Enemies By MICHAEL J. SNIFFEN Associated Press Writer WASHINGTON (AP) - 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 Guantanamo 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." 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 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. |
For an interesting experiment in censorship from the likes who prohibit posting at FR, check out the version available at the Detroit "Free" Press. Interesting cuts ... even including the removal of the blouse bit.
Nothing like a totally misleading headline! The way it's written, it seems like its saying that the US will USE torture to detain enemies. Not what the article is about at all.
I seem to recall that this topic has led to some unpleasantness for you in the past ;-)
The detainees have no constitutional rights, anyone can read the Constitution and see that for themselves.
They may have statuatory rights given them by laws passed by congress, and the courts have recently oveturned all precedent, tradition, history, and legislative intent to give themselves the power to entertain habeas pleas from aliens on alien soil.
=== The way it's written, it seems like its saying that the US will USE torture to detain enemies
If the grounds on which they are being held ensure exclusively to information gleaned by torture of the prisoner or another, is the US not using the fruits of torture to hold the prisoners (however unreliable past experience has proven information obtained by torture to be)?
I doubt the highly legalistic Findlaw is trying to obscure the issue at hand.
=== The detainees have no constitutional rights, anyone can read the Constitution and see that for themselves.
Same with the unborn -- particularly those viewed as ripe for use in Human Experimentation by the Feds and California.
No doubt it's the ability of GOP to be "strict Constitutionalist" and ignore entirely the moral grounds of our freedom as set forth in the Declaration which allow them to apply in a Compartmentalized fashion, as Circumstance dictates, niceties such as "all men are CREATED equal."
“The living Constitutional judge never has to put up with that. Whatever he thinks is good, is in the Constitution.”
Antonin Scalia
I'll leave it to the legislature to determine the treatment of foreign prisoners- as the Constitution says to.
Sorry that's too "strict" for you living constitutionalists LOL!
oyle 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.
Talk about your Private Contractor outsourcing ... I thought this was a particularly chilling line where Clean Hands are concerned.
Frankly ... given the "strict Constiutionalist" bent (by which some Americans, even, are Non-Persons) and the increasingly sadist profile of those tapped to direct Der Homeland Defense Department (I thought Wolfe's joining "former" KGB like Primakov particularly unsettling), I don't think it's going to be terribly long before folks realize I was onto something.
We've just given everyone -- particularly those "foreign powers" of which we speak directly -- to torture regardless the fact our own alleged "torture" to date appears to most to be nothing more than frat boy hijink spoils to which any "moral" victor is entitled.
I, for one, would like more information on the fruits of torture by "foreign powers" on which we have or may in the future rely.
I have a sneaking suspicion it's not going to seem so righteous all of a sudden once we get a good look at how some of our allies in the "War on Terror" still handle their business.
Not that we haven't already enlisted some of the worst of the lot to consult and direct our Homeland Defense. Even if former Soviet Kalugin is retiring, former KGB Primakov and former General Karpov still are there and we're now adding "former" Stasi Marcus Wolfe.
Not good. As always, actions speaker louder than words ... particuilarly the word "former" as applied to Democrats, Soviets, Stasi ... just about anything but "Nazi" it seems.
**On his deathbed, Stalin met with two possible successors to conduct a test to see which one would be better to rule the country. He called for two birds, and had a bird given to each man.The first man with the bird held on it so tight for the fear of it escaping, that when he released his grip, he discovered that the bird died.
The second man, noticing Stalin's disappointment did not wish to hold on as tight as his opponent. Much to his dismay the grip was too loose that the bird was able to get away.
Angrily, Stalin demanded that another bird be brought to him. When he received a bird, he plucked off all the feathers. Then he opened his hand, revealing a tiny, naked, cold bird, where he replied "You see...and he is even thankful for the human warmth coming out of my palm."**
Source just happens to be ONE post above a comment regarding CNN's idolizing of former Stasi Markus Wolfe.
"[W]e have understood the 11th Amendment to stand not so much for what it says, but for the presupposition ... which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991)
=== Sorry that's too "strict" for you living constitutionalists LOL!
I'm not a "living" constitutionalist. Far from it. I'm well aware the damage wreaked by "spirit of Vatican II" sorts within the Catholic Church and so am actually more attuned to this sort of abuse than most, I bet.
But I wish you to give some thought to the fact "strict Constitutionalist" may well be a codeword among those who wish to focus exclusively on the legalistic framework for denying rights -- such as the Right to Life -- to people.
I have come to believe that "Strict Constitutionalists" are those who eschew entirely the self-evident truths of our Declaration without which the Constitution may be interpreted at will ... depending upon who's got the better meaning of "is".
The decision of "Planned Parenthood v. Casey" ... a decision of "conservative" justices appointed by Republican presidents and cited -- with all due nyah nyah hubris by Specter recently ... is a good example of "Strict Constitutionalists" at work.
... very often today we seem to turn our back on [the right to life and the defense of our true liberties] because, I guess, for a great many people it's more convenient to try to forget who we are than to remember who we are at a time that we would do so to our shame.The facts are clear. We are a nation founded on a clear and simple premise. The fact that it is clear and simple, however, doesn't mean that it was easy to arrive at … easy to perceive … easy to apply to human circumstances and affairs. It was not.
And, in fact, in all the thousands of years of human history before this nation was founded, this particular insight had certainly been around but it had never been expressed in a form that actually led to and transformed political institutions and society.
But we are different. And in our case--I believe very much by the providence of God Almighty--we live in a country where this special insight was, in fact, applied in a way that has born great and so far lasting Truth. And the insight is quite simple. We start with the recognition that there is, in fact a Creator God. [We then] understand that that Creator takes an interest in human affairs, in human justice and is, in fact, the foundation by His Will of the right understanding of human justice and social affairs.
And that understanding is such that each and every human being stands in the sight of that Creator God almighty equal to every other human being in their moral worth and dignity. An equality that is not based upon human power or human assertion, upon human constitutions or human attitudes and judgment but instead rest upon the will of our Almighty God. Determined by His hand, His rules, by His Choice and not our own.
Of course there will be those – particularly those folks in the media (and anybody who knows me even a little bit knows that I have a kind of running battle with the American media. I actually think that, by and large, anyone of conscience would have a running battle with the media.)
But in this context … whenever I say this, somebody out there […] asks some question which implies that what I have just said to you, that simple logic I've just outlined, that premise – that rights come from God – "this is Alan Keyes standing there articulating his particular sectarian religious belief."
Now it is very true that every word I just spoke to you is real consistent with my Roman Catholic heart and my Roman Catholic faith. But it's also very true that every word I just spoke to you is not just a reflection of my heart and my faith, it is the American heart and the American faith.
This is articulated very clinically when this Nation began. In the great documents that our Founders used to justify their willingness even to go to war in order to assert their independence. I think we ought to take that very seriously because – at least in those days, I don't know about now, I think we're kind of … we've gotten really careless about wars these days, as some events, I think, even in recent times have proven.
And we go to war maybe without understanding what we ought to understand. Every time you go to war, you know -- a people like ourselves -- even if that war is conducted by others, even when it's conducted by a means where you're flying high up in the air and dropping bombs on people you don't even see and folks die as a result …
I hope we still understand that each and every one of us who has an opportunity to participate as part of the sovereign body of the people in this country: we are responsible for every life that is taken by America in war.
And we had better be awfully sure that what we're doing has a solid moral ground or we will stand before God bearing the stain and weight of every life taken in injustice that we did not oppose.
And I think that it's why our founders, being that they were – many of them, most of them, almost all of them, in fact – people of conscience and faith, felt that before you risked war, you better justify what you're doing in moral terms. You've got to state the moral premises and the moral principles that inform your heart.
And that's what they did in our Declaration of Independence. It's a statement of the moral justification of that assertion of independence at the risk of war. And, in doing what they did, they set forth the basic moral principles that then informed the later deliberations that led to our Constitution and are the practical foundation of our liberty.
And so those words in the Declaration of Independence – "All men are created equal and endowed by their Creator with certain unalienable rights" -- are the basic premise of everything that, as a people, we claim to hold dear. Self-government and rights and due process and liberty and all these other unique hallmarks of the American way of life, they rest on that premise and that premise alone.
off topic note to self: Amit Yoran
Oh, I know you have good intentions. But the Declaration is not the Constitution. It is not useful for the understanding of the Constitution.
The language in the Constitution, and the debates over ratification in the states is best for that- as Madison said, also we have other historical sources specifically on constitutional issues.
Frankly I can't decide what to make of this "Constitutional declarationism' doctrine. It seems to be catching on with people. But the Declaration's history shows no justification for using it that way. It's a declaration of independence from Britain.
Sure, parts of it can be used as guides for changing government for the better- as Lincoln used it. But, federally, those changes must be through the Amendment process.
The federal judiciary must be restricted to the powers granted it.
Unless the courts are restrained by the Constitution we would end up grateful for the "warmth" of the court's hand- as in Stalin's lesson.
In cases where the safety and security of third parties are at stake, I have no problem with "improperly" obtained information being used to prevent whatever harm the poor "violated" terrorists had in mind.
How many deaths of US soldiers, sailors, or Marines are you willing to accept in order to apply peacetime notions of civil rights to enemy combatants? The real question is the truth and it's pretty certain that these people were picked on battlefields. What do *you* think they were doing there? Many of them were not even Afghans or Iraqis. They sure as hell were not providing humanitarian assistance to the Taliban or the regime of Saddam Hussein. Those groups put "humanitarians" through shredders or just shot them in the head.
I think that's a bit strong. In those cases were the Constitution is not clear, which are few and far between, and enlightenment cannot be found in the written records of the Convention and such sources of the public debates surrounding the Constitution, such as the Federalist and anti-federalist papers, the Declaration can illuminate basic principals. However, the written Constitution comes first, the interpretation comes in a poor second. Otherwise, why bother with a written document?
In cases where the safety and security of third parties are at stake, I have no problem with "improperly" obtained information being used to prevent whatever harm the poor "violated" terrorists had in mind.
First, there must be some reason that we've held for so long that information obtained thus is notioriously unreliable. We certainly used to believe exactly this when it was only the likes of the Evil Soviet Union who would torture folks into confession crimes worthy of Show Trials.
Second, situational ethics or "lifeboat" ethics result in all manner of distasteful Donner Party events. Do we enshrine these Extreme Circumstances as the norm?
That seems to be the primary argument of pro-aborts ... the killing of one's own kids by desperate women in dire straits which has occurred throughout human history somehow necessitating a "Right" to do so.
How many deaths of US soldiers, sailors, or Marines are you willing to accept in order to apply peacetime notions of civil rights to enemy combatants?
Well, my point all along has been that I best be prepared to accept the TORTURE of US soldiers, sailors and Marines if we the "moral" warriors are going to legitimize torture by "sending the message" that there's always a loophole we can use absent our enshrining the double standard we appear to be enshrining here. Are we going to likewise be understanding of Torture as legitimate self-defense practice or will be ready to prosecute those non-allied "foreign powers" who torture as war criminals?
We exhibited exactly this sort of selectiveness where we prosecuted some (but not nearly all) German war criminals at Nuremberg while ignoring ENTIRELY the cadre of Japanese physicians who experimented on Chicoms and US soldiers (infecting them, freezing and thawing them, and vivisecting them LIVE).
I'd prefer something hard and fast -- like the self-evident truths which allegedly anchor our Constitution -- to guide us in what has been openly accepted and broadcast from the beginning as a War on Terror to last a MINIMUM of 30 years.
I think if we're going to be waging pre-emptive "moral" wars to rout the planet of evil itself and "liberate" nations to democracy (a/k/a the "tyrannay of the people's will" roundly repudiated by De Toqueville and our founding fathers), you best stick to the high ground. None of this bodes well for our men, that's the point.
And it's been my fear from the beginning when first Rumsfeld telegraphed our intentions in this regard which now are being etched in stone by the courts.
Strict constructionalism does not require one to infer into the Constitution what wasn't intended. Quite the opposite.
Fascinating reading BTW. I'd never thought sovereignty could be so complicated!
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