an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Lindsey Graham has played a largely laudable role in the battle for honorable standards of treatment for detainees in the War on Terror. His efforts to regulate litigation in the U.S. courts coming out of the detention facility in Guantánamo have been much more controversial. Senator Graham, who is a reserve Air Force JAG officer and appeals judge, has couched some of his positions in terms of a desire to protect the integrity of the military courts system and to create a rational and efficient process of appeal. At a conceptual level this approach has much to it, though many JAG officers are quick to differentiate the established courts martial system from the military commissions and tribunals created by fiat of Secretary of Defense Rumsfeld, where sharp deviations from accepted courtmartial practice have been decreed.
Of all the controversial aspects of the new system Rumsfeld decreed for detainees in the War on Terror, none has been more controversial that the evidentiary standard given. Congress directed – in the Uniform Code of Military Justice – a flat prohibition on the use of testimony secured through torture or extreme coercion, and provided that the UCMJ rules would be binding on the military justice system. 10 U.S.C. sec. 863. The Federal Rules of Military Evidence carry this ban forward. But notwithstanding these clear signs of Congressional direction, Rumsfeld decided against any prohibition on the use of evidence extracted through torture – concluding that this should be left up to the finders of fact, who should be free to consider anything for “probative value.”
Accordingly it appeared reasonably clear that Rumsfeld’s course was a shirking – if not outright defiance – of Congressional guidance. Senator Graham’s original language would have made this clear, and reincorporated the prohibition. Of course such a piecemeal approach was dangerous, and would raise the specter of Congressional ratification or approval of the balance of the Rumsfeld rules. Since, as Senator Specter noted, Congress in fact failed to study these rules, such an inference would be clearly unwarranted.
In the last forty-eight hours, however, a turn for the worse appears to have been taken. Under strong pressure from the White House, it is now being said that Senators Graham, Warner and Levin have agreed to – or are close to agreeing to – this language:
Consideration of statements derived with coercion --
(1) Assessment -- The procedures submitted to Congress pursuant to subsection (a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess -- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of such statement
If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.
Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration’s viewpoint, this would be a shocking result. It is made even more shameful by comparison with the decision of Britain’s highest court, handed down just one week ago, reaffirming the ban on the use of torture-extracted evidence as a legal absolute.
It is imperative that these backroom dealings on a matter of such important public concern be fully exposed and discussed. If Congress wishes to combine a vote against torture in the McCain Amendment with a back-door blessing on torture in Graham-Levin-Kyl, at least let this be done in full public view and let the votes of those who support this abomination be publicly recorded. Posted
by Scott Horton [link]
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Thomas, Your presentation of the Lords' views seems to be flawed. Their point is simply that, if you get information that there is a terrorist attack ongoing or imminent, you do not ask for the source of the information, but run to prevent the attack. The House of Lords does emphatically not endorse the use of torture or ill-treatment by the executive to gain evidence. Best, Andreas Paulus
We have gone from what the definition of "is" is, to what the "definition" of Torture is.
And, of course, the wingnut definition of Torture is in keeping with their unwavering support for the death penalty, while those countries that don't have the death penalty tend to view Torture as the abomination it is.
So, we have the Bush administration essentially defending practices perfected by the Gestapo, the KGB and the Stasi. Do the Bush people even have a clue what this says about their so-called, self-proclaimed, chest-thumping "morality"?
Why do they hate America and why are they trying to drag us all down into the pit of hell with them?
Consider the possibility that the Bush partisans do not really believe their own arguments, such as they are. If they were voicing general principles, they would be wrong. Even the Hollywood scenarios they conjure up give lie to that, because even if torture worked, which it does not (unless you want to extract false confessions for political reasons, not intelligence reasons), you need weeks of effort, so the whole ticking clock is bogus.
Yet, if they believed in the general principle, they would also say that it applies to a Clinton admin or a Carter admin. Yet, it's easy to imagine that they would opposed Democrats if the show was on the other foot (rather then being smashed on a supects head).
So this is about an ideology of power, specific to certain personalities. They believe, most likely, in a special right for their favored leader, Dubya, to authorize what they would prob. condemn from any other person. That's just a theory