A Dissenting View on Torture

Today's 2-1 DC circuit appeals court ruling to strip habeas from all pending Guantanamo detainee cases is unfortunate and wrong. As usual, Balkinization's Marty Lederman provides the most cohesive and impassioned critique of the ruling.

Although there's been a lot of chatter in the media about the case-- one important element of the decision has been overlooked. In her dissent, Judith W. Rogers stressed that Combatant Status Review Tribunals (CSRTs) are not adequate substitutes for habeas because they allow evidence drawn from torture. As such, CSRTs are not "capable of assessing whether a detainee was unlawfully held and entitled to be released." Rogers explains that:

Continued detention may be justified by a CSRT on the basis of evidence resulting from torture. Testimony procured by coercion is notoriously unreliable and unspeakably inhumane. This basic point has long been recognized by the common law, which “has regarded torture and its fruits with abhorrence for over 500 years.” [citing, among others, Lord Bingham, the former UK Lord Chief Justice. For full citations, see page 23 of the ruling.] The [Detainee Treatment Act] implicitly endorses holding detainees on the basis of such evidence by including an anti-torture provision that applies only to future CSRTs. Even for these future proceedings, however, the Secretary of Defense is required only to develop procedures to assess whether evidence obtained by torture is probative, not to require its exclusion.

Let us hope the US Supreme Court will recognize this fact when they consider the case later this year.