Tortured Evidence: Injustice at Guantanamo
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