When the Bush administration seemed headed for a legal defeat last year on its right to hold U.S. citizens as "enemy combatants," it avoided the loss by moving Jose Padilla out of military custody just before the Supreme Court was to decide whether to hear his case. As Knight Ridder wrote then, it wasn't the first time the administration short-circuited legal review in order to keep its options open in the war on terrorism. It wasn't the last, either.
As the Wall Street Journal reports today, the administration has decided to prohibit military tribunals at Guantanamo Bay from using evidence obtained through the use of torture. The new rule, which the Journal expects to be issued this week, would reverse previous policy advocated by Dick Cheney and formalized in a White House decision last summer.
Has the White House come to understand the immorality and unreliability of evidence obtained through torture? Maybe. Or maybe, as the Journal notes, the White House is paying some attention to the Supreme Court's docket again. The court hears oral arguments next week in a case challenging the legality of the military tribunals. Prohibiting torture evidence now could help the administration's lawyers then, the Journal says, by allowing them to argue that the tribunals comply with the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Marine colonel who heads the team of military lawyers appointed to represent detainees doesn't seem to be impressed. Col. Dwight Sullivan tells the Journal that he hasn't seen the new rule yet, but that the devil will be in the details -- in particular, whether the rule requires detainees to prove that torture occurred or the government to prove that it didn't. And even if the burden-of-proof part of the rule is favorable for the detainees, Sullivan says, hearsay evidence would still be admissible during tribunal proceedings, possibly providing a "mechanism to launder tortured evidence."
But wait, you might be saying to yourself, doesn't the Bush administration insist that the United States doesn't do torture in the first place? Well, yes, it does. But a Defense Department spokesperson tells the Journal that the new rule is designed to "eliminate any doubt" that the tribunals will comply with the U.N.'s torture convention.