22 March 2006

U.S. Torture Policy Saga Continues.

The Bush Administration has backed away from its "we don't torture people, but we'll accept confessions obtained with torture policy" (pushed strongly by Dick Cheney's chief of staff David Addington and Pentagon General Counsel William J. Haynes II) which it adopted in July for proceedings at Guantanamo Bay, as court review of the administration's policy looms and in light, perhaps of the unenforceable part of the Detainee Treatment Act of 2005 passed by Congress in December, in which Congress bans torture by the administration more definitively than it had previously.

The Bush administration will bar statements made under torture from its Guantanamo Bay military courts, reversing a White House decision in July that could have allowed such evidence to convict suspected terrorists held at the U.S. naval base in Cuba.

The new rule, expected to be issued this week, comes before Supreme Court arguments next Tuesday over the legality of the special courts, known as military commissions, which President Bush authorized after the Sept. 11, 2001, terrorist attacks to prosecute non-U.S. citizens for war crimes.

Despite the fact that the regulation has been approved, its text remains secret at this time and has not been disclosed to defense counsel. In particular, it is not clear how detainees will be permitted to prove that they were tortured or how narrow a defintion will be applied to the term "torture". The administration has denied that this has ever happened despite strong evidence to the contrary. It appears that the change in the rules about torture evidence may have been motivated by concerns about:

the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The treaty, which the U.S. ratified in 1994, requires member countries to exclude statements taken under torture from "any proceeding."

This treaty has been raised in the Hamdan case by detainees arguing that the ever changing rules applied to their cases are illegal. Oral arguments in the Hamdan case will be held in the U.S. Supreme Court on March 28, 2006 and audiotapes will be promptly released to the public. The Detainee Treatment Act of 2005 has shifted the focus of the Hamdan case to whether it may proceed at all, in light of the act, and away from the merits of the case.

Separate litigation on the Detainee Treatment Act of 2005 is also pending in the U.S. Court of Appeals for the District of Columbia, which held oral arguments on the matter earlier today. Lawyers for detainees argued in that setting that the law is unconstitutional because it amounts to a suspension of the writ of habeas corpus in the absence of a rebellion or invasion, because it deprives all court of jurisdiction to hear such petitions.

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