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 (search), 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 (search) 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 (search), 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.