Tortured Evidence

It's time for the other shoe to drop. The legal scurrying has begun, and attorneys for the prisoners being held at Guantanamo Bay are gearing up to challenge the new law which not only deprives their clients of habeas corpus, but also allows for the introduction of evidence obtained through torture (as defined by the civilized world, not as defined by George Bush, Richard Cheney, Donald Rumsfeld, and Alberto Gonzalez). From the November 2 edition of the Sacramento Bee:

Riddled with legal gray areas, U.S. military trials for 14 high-level terror suspects and other detainees could bog down over questions about the CIA's interrogation tactics.

Military judges have wide freedom to define what is torture. And defense lawyers pledge to put on trial the government's treatment of detainees, particularly mock drownings and other practices banned by international treaties.

This week, attorneys for dozens of the detainees asked a federal appeals court to strike down key portions of the new military trials law, arguing the prisoners otherwise would be locked out of the regular judicial system.

...Under the law signed by Bush last month, the government is barred in tribunals from using any evidence stemming from torture. The law also prohibits evidence from "cruel and inhuman treatment" if it was obtained on or after Dec. 30, 2005, when Congress enacted the Detainee Treatment Act.

But coercive evidence obtained before that date could be admitted if a military judge deems it reliable and relevant. Legal experts say that gives the judges broad discretion since the law doesn't define torture and almost all the evidence predates December 2005.

...One of the law's most controversial provisions bars Guantanamo prisoners from challenging in federal court their indefinite detentions as "enemy combatants." The law instead authorizes three-officer military panels to review whether there is sufficient evidence to justify the detention. [Emphasis added]

The wisdom of challenging the law now, rather than later, is that it will keep the issues before the public and in the cleansing sunlight. While the Supreme Court left the door ajar for the use of military tribunals rather than civilian courts, I don't think the Hamdan decision envisioned the total repeal of habeas corpus.

Further, the Geneva Conventions, approved by Congress and signed by the US, are actually part of US law and will remain so until repealed by Congress. Coercive evidence (a lovely euphemism for information obtained by torture)is a violation of the Geneva Conventions, and I don't think even the Bush Court can ignore that detail.

There are all sorts of reasons why next Tuesday's elections are important, and this is one of the most important ones.