Michael J. Sniffen / Detroit Free Press – 2004-12-22 07:44:18

http://www.freep.com/news/nw/gitmo3e_20041203.htm

WASHINGTON (December 3, 2004) — US 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 US District Court hearing on lawsuits brought by some of the 550 foreigners imprisoned at the US naval base in Cuba. The lawsuits challenge their detention without charges for up to three years so far.

Attorneys for the prisoners said some were held solely on evidence gained by torture, which they said violated fundamental fairness and US due-process standards. But Boyle argued in a similar hearing Wednesday that the prisoners “have no constitutional rights enforceable in this court.”

US District Judge Richard Leon asked whether a detention would be illegal if it were based solely on evidence gathered by torture, because “torture is illegal. We all know that.”

Judge Rules “Due Process” Doesn’t Protect against Torture
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 prohibits them from relying on it.”

Leon asked whether 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, terror attacks even if the data came from questionable practices like torture by a foreign power.

Evidence gained from 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 Heymann, a former deputy US attorney general, said in an interview.

Leon asked whether US courts could review detentions based on evidence from torture conducted by US personnel.

Boyle said torture was against US 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 US soldiers there had been disciplined for misconduct.

The International Committee of the Red Cross said Tuesday it has given the White House a confidential report critical of US treatment of Guantanamo prisoners.

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