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| Use of Torture Might Exclude Evidence from Future Trials |
| 2004-05-15 |
| .... Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate. .... The FBI has instructed its agents to steer clear of such coercive interrogation methods, for fear that their involvement might compromise testimony in future criminal cases. .... The use of torture during interrogation has so many negative consequences that it may ultimately allow some accused terrorists to win acquittals merely because it will lead to suppressed evidence of their factual guilt. Evidence (such as a confession) gathered as a result of torturing a person like [Khalid Sheik] Mohammed will be excluded at his trial, if he ever sees one. This is true both in federal courts, which operate under the Federal Rules of Evidence, and military courts, which operate under the Military Rules of Evidence. Both the Fifth Amendment’s right against compulsory self-incrimination and the 14th Amendment’s guarantee of due process preclude the use of a defendant’s coerced statement against him in criminal court. In addition, any evidence gathered because of information learned through torture (sometimes called "derivative evidence") will likely also be excluded. Furthermore, the Supreme Court suggested in its landmark Fifth Amendment case, Oregon v. Elstad, that it might exclude evidence gathered after the use of any coercion, regardless of attempts by police and prosecutors to offset the coercion with measures like a Miranda warning. If Mohammed were prosecuted, and a court followed the line of reasoning set forth in Elstad, he might well see the charges against him evaporate entirely for lack of evidence. Right now, the Justice Department has no plans to criminally prosecute Mohammed or other top al-Qaida leaders (like Abu Zubaida) currently being held by the United States in shadowy detention facilities overseas. But federal prosecutors have filed charges against alleged al-Qaida member Zacarias Moussaoui for being part of the 9/11 conspiracy. And the Supreme Court is now considering whether trials of some sort are constitutionally required for other alleged terrorists. Problems with the Moussaoui case reflect the problem with evidence obtained through coerced confessions. In that case, it’s not the government that seeks to bring in the tortured al-Qaida leaders’ out-of-court statements—it’s Moussaoui, the defendant. However, the result may be the same. Such out-of-court statements will likely be challenged as hearsay by whatever side isn’t trying to bring them into court. And under the applicable hearsay exception, for declarations against interest [see Rule 804 (b)(3)], such statements are only admissible if they carry certain indicia of reliability. Given the questionable ability of torture to produce reliable information, this will be a hotly contested issue. It’s not clear whether this evidence will ever be admitted to court. This torture of top al-Qaida leaders may also cause problems for the government were there to be a trial for the alleged "dirty bomber" Jose Padilla. The tip that led to Padilla’s initial detention on a material witness warrant in May 2002 came from intensive CIA interrogations of Zubaida, a close associate of Osama Bin Laden. In December 2003, the 2nd Circuit Court of Appeals ordered that Padilla be released from military custody and either charged in federal court or released. However, any prosecution of Padilla could be very problematic for the government, because the case for his guilt rests mostly (if not entirely) on secret interrogations of al-Qaida leaders, which now appear to have involved torture. If a criminal case is ever brought against Padilla, his lawyers are sure to challenge this crucial evidence on a number of grounds, including reliability and the fact that it was procured with torture in a way that "shocks the conscience." Interestingly, such problems would not have arisen had these suspects been hauled before a military tribunal at the outset. The Pentagon’s procedural rules for tribunals allow evidence to be admitted if it "would have probative value to a reasonable person." These rules contain no provision for the exclusion of involuntary statements, and on their face, do not allow the presiding officer of such tribunals to rely on Supreme Court precedent or federal case law to decide issues of evidence. Presumably, these tribunals were designed to allow for the admission of evidence from dubious circumstances, including the "intensive questioning" of Mohammed and Zubaida. So, if the Pentagon moves forward with its plans to try al-Qaida members before these courts, it may be able to evade this problem altogether. However, even that won’t solve the problem for the rest of the legal system, which only allows evidence obtained through constitutional means. By using torture to question the top terrorists it has in custody, the government has effectively sabotaged any future prosecutions of al-Qaida players — major and minor — that might depend on evidence gathered through those interrogations. It’s plausible that skilled interrogation by the FBI, in accordance with American law, could have produced valuable evidence of these terrorists’ guilt, which could have been used in court. But now that torture has been used, that may just be wishful hindsight. .... |
| Posted by:Mike Sylwester |
| #8 So what are terrorists? Criminals? Then they should be handled by the civil courts with all the safeguards that implies. Militants? then they are POWs and we end up with military courts and Geneva convention restrictions which were aimed at making war "civilized". Obviously, neither approach applies to this new thing under the sun. Personally I think we should bring back an old Northern European tradition, outlawry. To be named an outlaw didn't mean you operated beyond the limits of the law, it meant you were beyond the protections of the law. And so it should be with these mokes. They recognize no civilized law (Islamic law? I said civilized.), so they are free from its restrictions and protections. Open season, shoot 'em, hang 'em, beat the hell out of them for info. Makes no difference, there's no weregild. |
| Posted by: Mercutio 2004-05-15 10:42:15 PM |
| #7 Phil Carter is right, and that is exactly the point of putting these terrorists before military courts. There's a problem here though: Carter calls the interrogation methods torture, but are they really? Has any U.S. legal body yet determined that prisoners were indeed "tortured"? Gen. Pace says that Geneva Conventions were violated, so does that mean that any violation of the Geneva Convention can be considered to be torture? |
| Posted by: Bomb-a-rama 2004-05-15 7:57:06 PM |
| #6 I agree that it is time to start institutionalizing the practice of shooting terrorist suspects who are trying to escape - after we have extarcted any useful information from them. 'Tis better to act now, and later ask for forgiveness, than to wait for permission. |
| Posted by: Lone Ranger 2004-05-15 7:24:31 PM |
| #5 #1: There is no reason to keep these people alive once they have outlived their usefulness. #3: Guess, we'll just have to kill them then. #4: Terrorists, as unlawful combatants, are not entitled to a trial at all. We don't have to submit them to a court; we can shoot them out of hand. First we conduct a military tribunal and then we execute them. That's what we should do selectively and thoughfully. What we instead allowed to develop out of control was a frenzied routine of tormenting anybody and everybody brought to the prison. The decisions were made by the military policemen on the midnight shift and by junior interrogators fresh out of language school. It was a mindless conveyor belt, and promotions would be earned by increasing the sytem's "productivity," measured by numbers of reports, no matter how short, unreliable, false, useless and misleading. Someone would be arrested in his home, hauled to the jail, and right away some guard or interrogator who knew nothing at all about him or about the circumstances of his arrest would routinely start "softening him up." . . |
| Posted by: Mike Sylwester 2004-05-15 11:48:53 AM |
| #4 Hmmm... no mention of the fact that terrorists, as unlawful combatants, are not entitled to a trial at all. We don't have to submit them to a court; we can shoot them out of hand, or drop them into a vat of hot pig fat -- perfectly legally. I guess the left has a problem with the idea that people who have placed themselves outside the rule of law are not entitled to the protection of the rule of law. |
| Posted by: Robert Crawford 2004-05-15 11:20:20 AM |
| #3 By using torture to question the top terrorists it has in custody, the government has effectively sabotaged any future prosecutions of al-Qaida players — major and minor — that might depend on evidence gathered through those interrogations. Guess, we'll just have to kill them then. Yes, yes. I woke up this morning and thought about how concerned I should be about the legal rights of foreign terrorists? My conclusion... not very. |
| Posted by: tu3031 2004-05-15 10:47:08 AM |
| #2 Kindly take note of the leftward pedigree of the source of this news article. This is a release of information to coincide with all the news about Abu Ghraib. Its release is clearly timed to induce confusion over the detainees at Guantanamo and elsewhere: an attempt to cloud the public mind over issues that have little to do with the war, Liberals are work since 2001: Trying to enable more terrorist attacks. They can't send money, but they can sure muddy up the waters with news articles like this. |
| Posted by: badanov 2004-05-15 10:04:31 AM |
| #1 Phil Carter: It’s plausible that skilled interrogation by the FBI, in accordance with American law, could have produced valuable evidence of these terrorists’ guilt, which could have been used in court. But now that torture has been used, that may just be wishful hindsight. Phil Carter is right, and that is exactly the point of putting these terrorists before military courts. The problem at hand is that the people in question are terrorists, not ordinary criminals. The operations undertaken to capture them are of a military, not civilian nature. The entire reason that risks are being taken to capture instead of kill them is to obtain actionable information for stopping or killing the perpetrators of other terrorist plotters. The thought of civilian trials does not enter into it. As unlawful combatants, terrorists ought to, ideally, be summarily executed once interrogations are over. This is what the US did with captured Germans in American uniform during the Battle of the Bulge, when no American civilians back in the continental US were under threat. There is no reason to keep these people alive once they have outlived their usefulness. |
| Posted by: Zhang Fei 2004-05-15 9:52:59 AM |