Friday, September 08, 2006

Tainted cases

One of the more puzzling aspects of Bush's admission that his administration has been holding "high value" terrorism suspects in secret prisons and subjecting them to an "alternative set of [interrogation] procedures" was his claim that these people would now face prosecution in American courts and military tribunals. What I'm wondering is "how"? I cannot imagine any court in any civilised country (and that still barely includes the US) allowing proceedings against someone who has been held without charge for five years, denied access to lawyers and the ICRC, and questioned while being waterboarded, and I certainly cannot imagine them allowing any evidence tainted by the suggestion of torture. That would be anathema to the common law tradition of which the US is a part, as well as contrary to the US's obligations under Article 15 of the Convention Against Torture. Make no mistake, these people deserve prosecution, and if found guilty, long jail sentences - but the Bush administration's treatment of them has tainted the entire case and effectively precluded any possibility of prosecution.


Reuters: "Attorney General Alberto Gonzales has said the administration would propose trying enemy combatants based on military court martial procedures -- although with a number of key changes such as admitting hearsay evidence, limiting rights against self-incrimination before a trial and limiting defendants' access to classified information."

Or as a Fark submitter put it: "The good news is, the Bush administration has a new plan for trying Gitmo prisoners. The bad news is, if you float, you're a terrorist"

Posted by Lyndon : 9/08/2006 03:34:00 PM

As long as any confession or evidence obtained as a result of torture or torture-lite is not admitted (or any evidence arising therefrom) then isn't too great a concern with the delay is there?

(of course, delay can, if certain factors are present, be grounds for a permanent stay of prosecution on its own right)

Posted by Graeme Edgeler : 9/08/2006 04:09:00 PM

It's not true that the Bush administration's treatment of these 14 detainees means they cannot be prosecuted. First, let's assume that one of these detainees is being tried and makes the claim that he was tortured. What the court could do is simply exclude certain evidence obtained via the torture. This doesn't make it impossible for the state to make its case per se - provided there was other evidence of guilt that could be introduced. I suppose it might be the case that what was done to the detainee was so shocking that the case could be stayed.

Second (and more significantly), these guys are not going anywhere near a US court. They are not going anywhere near the criminal justice system - indeed they have quite consciously be kept out of it for the past 4-5 years. If they are going to be tried, it appears it will be by some sort of military commission. And that's a whole other ballgame.

As the bill sent to Congress yesterday currently stands, only evidence obtained via "torture" is excluded. Based on what we now know about the Bybee/Yoo memos on the meaning of the word, the Presidential spin on the meaning of the McCain Amendment of last year, and the public refutations that the US engages in any torture whatsoever just yesterday, I think it's safe to say that as far as the Administration is concerned, what the CIA did to these guys (waterboarding, cold cell, white noise etc) simply isn't torture.

Let us hope that the Democrats , and the mythical "moderate Republicans" find their respective spines that have been AWOL for the past five years.

Posted by John : 9/08/2006 05:37:00 PM

One could argue there is no point puting terrorists through a judicial system and imprisoning them (in terms of deterance/rehabilitation). Unless it is a method of killing them (can you imagne a terrorist in the prison showers in a tough US prison?).

Posted by Genius : 9/08/2006 07:05:00 PM

"Make no mistake, these people deserve prosecution"

How can you be so sure I/S? The Bush regime has shown itself time and time again to lie and imprison people for no reason.

Posted by Anonymous : 9/08/2006 07:22:00 PM

1) there would be nothing wrong with funding osama prior to him having actually done anything wrong (rather like it would be considered illegitimate imprison a person in case they commit murder) except that the US apparently didn't do that as far as Osama knows (and Osama as crazy as he may be is probably a pretty honest bloke). Maybe they helped someone else out.

Still abandoning afganistan (and all the other countries) to the soviets might have been the right call, afterall, there is nothing wrong with conquoring your neighbours eh?

Posted by Genius : 9/08/2006 10:54:00 PM

Ah, now that's the genius of what they've done. The Bush Administration intends to force a Senate vote on the legitimacy of the trials just before the upcoming elections. The Democrats get to decide if they want to (a) vote for the trials, thus legitimising the use of torture and illegal imprisonment, or (b) oppose the trials and allow some of Al Qaedas senior leaders to walk free.

Posted by Anonymous : 9/09/2006 07:41:00 AM

They have been riding that horse for a long time now.
I wonder what the reform party and so forth position themselves on these issues (or if they have positions between elections at all).

Posted by Genius : 9/09/2006 08:36:00 AM

Lyndon: which is a breach of Common Article 3 in itself. CA3 bars the

"passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Admitting hearsay, denying the accused the right to hear and contest the evidence against them is a violation of the US's international obligations (and not just under the Geneva Conventions, but under things like the ICCPR). Not to mention an insult to justice and to the ideals the US was founded on.

Posted by Idiot/Savant : 9/09/2006 03:27:00 PM