Detention at Guantanamo

The BBC recently published an informative article that deals with the legality of the detainees at Guantanamo and the various processes that defendants are subjected to.

What about evidence obtained by torture or coercion?

Evidence obtained under torture will not be permitted, but evidence obtained by coercion could be.

One problem is that "waterboarding" is not classified as torture by the Bush administration.

If evidence was obtained before 30 December 2005 (that is, the date when the Detainee Treatment Act came into force, outlawing "cruel, inhuman or degrading treatment"), the military judge can allow the evidence if "the totality of the circumstances renders the statement reliable" and "the interests of justice would best be served".

This suggests that some evidence obtained in the so-called "secret prisons" operated by the CIA might be admissible. If it was obtained after 30 December 2005, then the judge would also have to be satisfied that no "cruel, degrading or inhumane treatment" had been used.

Read the whole article

Guantanamo Bay Trials Begin

The New York Times reports the beginning of the Guantanamo Bay trails. The report concludes that this is not only a trial for Salim Hamdan but also a trial for these tribunals:

Mr. Hamdan’s trial is, in a sense, two trials. Mr. Hamdan is being tried on accusations of conspiracy and material support of terrorism. And the Bush administration’s military commission system itself is on trial. After years of debate, protest and litigation, the legal standing of the tribunal system at Guantánamo remains a question for American courts and officials around the world.

The chief Guantánamo prosecutor, Col. Lawrence J. Morris of the Army, said this first Guantánamo tribunal was “the most just war crimes trial that anybody has ever seen.”

Matt Pollard, a legal adviser for Amnesty International who is an observer here, sees it differently. He said he was struck by a sense that the proceedings were more of a replica of a trial than a real one.

“We are within a frame of a beautiful picture,” created by the Pentagon, Mr. Pollard said. “When you’re inside that frame, everything looks nice.”

The Guantánamo legal system was intended to try “unlawful enemy combatants” caught on the post-Sept. 11 battlefield. Prosecutors say there is little room for the usual legal restrictions in interrogations intended to prevent a terrorist attack. The administration’s strategy in using the Guantánamo naval station was based on its belief that the Constitution would not apply here.

Legal challenges to that assertion are among a number of factors that have delayed the government’s efforts to conduct trials here for years.

Read the whole report.

Is Waterboarding Torture?

The discussion continues as Gasper Tringale reports on his experience in Vanity Fair:

What more can be added to the debate over U.S. interrogation methods, and whether waterboarding is torture? Try firsthand experience. The author undergoes the controversial drowning technique, at the hands of men who once trained American soldiers to resist—not inflict—it.

Tringale voluntarily underwent waterboarding. He describes the effect of waterboarding:

Also, in case it’s of interest, I have since woken up trying to push the bedcovers off my face, and if I do anything that makes me short of breath I find myself clawing at the air with a horrible sensation of smothering and claustrophobia.

Read about his experience.

Torture Memos Released.

Yesterday the 81-page "Torture Memo" written by John Yoo was publicly released.

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president's ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce "an extreme effect" calculated to "cause a profound disruption of the senses or personality."

Read the whole story here.

BBC News has an excellent story explaining the history of water-boarding. Unfortunately it has a vast and varying history.

The Khmer Rouge were fast workers. In only a few years they managed to kill one
quarter of Cambodia's population with a mixture of execution and starvation.

But like others who butchered in the pursuit of utopia, they borrowed heavily from the past. Water-boarding was not their invention. The Spanish Inquisition used it and called it the toca.

The Dutch East India Company used it in the massacre of Amboyna in 1623.

For much of history, water-boarding has been to torturers what cream is to apple pie. They go hand-in-hand.

Read more here