[Ppnews] Tortured Evidence: Injustice at Guantanamo

Political Prisoner News ppnews at freedomarchives.org
Wed Feb 20 10:59:04 EST 2008

Tortured Evidence: Injustice at Guantanamo

February 20, 2008 By Marjorie Cohn

The Bush administration has announced its 
intention to try six alleged al Qaeda members at 
Guantánamo under the Military Commissions Act. 
That Act forbids the admission of evidence 
extracted by torture, although it permits 
evidence obtained by cruel, inhuman or degrading 
treatment if it was secured before December 30, 
2005. Thus, the administration would be forbidden 
from relying on evidence obtained by 
waterboarding, if waterboarding constitutes torture.

That's one reason Attorney General Michael 
Mukasey refuses to admit waterboarding is 
torture. The other is that torture is considered 
a war crime under the U.S. War Crimes Act. 
Mukasey would be calling Dick Cheney a war 
criminal if the former admitted waterboarding is 
torture. Lawrence Wilkerson, Colin Powell's 
former chief of staff, has said on National 
Public Radio that the policies that led to the 
torture and abuse of prisoners emanated from the Vice President's office.

The federal government is working overtime to try 
and clean up the legal mess made by the use of 
illegal interrogation methods. In a thinly-veiled 
attempt to sanitize the Guantánamo trials, the 
Department of Justice and the Pentagon instituted 
an extensive program to re-interview the 
prisoners who have undergone abusive 
interrogations, this time with "clean teams." For 
example, if a prisoner implicated one of the 
defendants during an interrogation using 
waterboarding, the government will now 
re-interrogate that prisoner without 
waterboarding and get the same information. Then 
they will say the information was secured 
humanely. This attempt to wipe the slate clean is a farce and a sham.

In Brady v. Maryland, the US Supreme Court held 
that a prosecutor has a duty to give criminal 
defendants all evidence that might tend to 
exonerate them. Yet the CIA admitted destroying 
several hundred hours of videotapes depicting 
interrogations of Abu Zubaydah and Abd al-Ramin 
al-Nashiri, which likely included waterboarding. 
The administration claims Abu Zubaydah led them 
to Khalid Sheikh Mohammed, one of the defendants 
facing trial in the military commissions. So the 
government has destroyed potentially exonerating 
evidence. Moreover, the CIA's "enhanced 
interrogation techniques" are classified so they 
can be kept secret from the defendants, and CIA 
agents cannot be compelled to testify or produce evidence of torture.

A report just released by Seton Hall Law Center 
for Policy and Research reveals more than 24,000 
interrogations have been conducted at Guantánamo 
since 2002 and every interrogation was 
videotaped. Many of these interrogations were 
abusive. "One Government document, for instance, 
reports detainee treatment so violent as to 
"shake the camera in the interrogation room" and 
"cause severe internal injury," the report says.

The Military Commissions Act contains other 
provisions that deny the defendants basic due 
process. It allows a trial to continue in the 
absence of the accused, places the power to 
appoint judges in the hands of the Secretary of 
Defense, permits the introduction of hearsay and 
evidence obtained without a warrant, and denies 
the accused the right to see all of the evidence 
against him. Defense attorneys are not allowed to 
meet their clients without governmental 
monitoring, and all of their notes and mail must 
be handed over to the military.

Will the U.S. Supreme Court be able to rectify 
the situation of abusive interrogations if and 
when a case comes before it? Not if Justice 
Antonin Scalia has his way. Once again, Scalia is 
acting as a loyal foot soldier in the President's 
"war on terror." In a BBC interview that aired 
this week, Scalia defended the use of torture to 
extract information from prisoners in some cases.

Scalia's remarks mean he has prejudged the issues 
in future cases in which the Constitution might 
dictate the suppression of evidence because of 
illegal police interrogation techniques, or the 
right to compensation of a person whose civil 
rights have been violated. Justice Scalia should 
recuse himself from any case that presents these issues.

Bush is meanwhile threatening to veto a bill 
Congress passed that would forbid the CIA from 
subjecting prisoners to interrogation techniques 
banned by the U.S. Army Field Manual. John 
McCain, the tortured POW who led the charge in 
2005 against cruel treatment, has now hitched his 
wagon to Bush's star. Presidential candidate 
McCain voted to allow the CIA to continue to ply its cruelty.

When Bush vetoes the bill, Congress should stand 
firm for the rule of law and basic standards of 
human decency and override his veto. Dick Cheney 
and other officials who participated in 
formulating the abusive interrogation policies 
should be investigated under the U.S. War Crimes 
Act. And the Democratic-controlled Congress 
should repeal the Military Commissions Act that 
Bush rammed through the Republican-controlled Congress.

Marjorie Cohn is a professor at Thomas Jefferson 
School of Law and president of the National 
Lawyers Guild. She is the author of Cowboy 
Republic: Six Ways the Bush Gang Has Defied the 
Law. Her articles are archived at 

Freedom Archives
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San Francisco, CA 94110

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