TORTURED EVIDENCE

The latest twist in the torture end-game is a new Graham-Levin-Kyl initiative that would allow evidence procured by torture to be admissable in the military justice system. The proposed language is as follows:

Consideration of statements derived with coercion —

(1) Assessment — The procedures submitted to Congress pursuant to subsection
(a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess —
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement.

Allowing evidence procured by torture to be admissable is exactly the question recently addressed by the British law lords, and they emphatically rejected it as alien to centuries of English common law. If Congress were to pass this wording, it would be the first time in the history of the United States that torture-produced evidence was legally admissable. That’s a big deal. Scott Horton has more analysis here.

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