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<h1><b>Tortured Evidence: Injustice at
Guantanamo</b></h1><font size=3>February 20, 2008 By <b>Marjorie Cohn</b>
<br>
<a href="http://www.zcommunications.org/znet/viewArticle/16565" eudora="autourl">
http://www.zcommunications.org/znet/viewArticle/16565<br><br>
</a>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. <br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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<i>Marjorie Cohn is a professor at Thomas Jefferson School of Law and
president of the National Lawyers Guild. She is the author of </i>Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law. <i>Her articles are
archived at
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