Guantanamo Courts to Reject Torture Statements

Military courts at the U.S. detention facility at Guantanamo Bay, Cuba, will no longer accept statements made under torture, according to a Wall Street Journal report. The court ruling is reportedly aimed at helping military courts survive a pending Supreme Court review of how so-called "enemy combatants" are treated. Madeleine Brand talks to Jess Bravin of the Wall Street Journal about his story.

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MADELEINE BRAND, host:

The White House says evidence gathered under torture will not be used in its Guantanamo Bay military courts. The new rule is expected to be issued this week, and it reverses previous policy. It also comes just before the Supreme Court is to review the legality of those military courts.

And here with more is Wall Street Journal reporter Jess Bravin, who writes about the torture policy in today's paper. And welcome to the show.

Mr. JESS BRAVIN (Reporter, Wall Street Journal): Thanks.

BRAND: What was the previous policy, and why did the White House decide to reverse it?

Mr. BRAVIN: Well, the previous policy was a very open-ended definition of what kind of evidence could be admitted before these military commissions at Guantanamo Bay. The rule was that evidence that was probative to a reasonable person, and also consistent with having a full and fair trial, could be admitted. Now, that was not a specific invitation to allow evidence through torture, and the government has said that it does not permit the torture of prisoners or defendants at Guantanamo Bay.

Nevertheless, some officials had argued last summer that a clear prohibition of the--for the admission of evidence taken through torture should be adopted, and that idea was turned down at a White House meeting last summer. The new rule, however, will say that prosecutors cannot use evidence taken under torture, and that the commissions themselves must exclude it if it is introduced.

MADELEINE BRAND, host:

If they previously declined to issue this kind of rule, why now, why have they reversed themselves now? Does it have to do with the Supreme Court case?

BRAVIN: Well, they say no. The government's position is that they never were seeking to introduce evidence taken through torture, and they feared that had they adopted a rule that said we will not admit evidence taken through torture, it might imply that they actually were torturing people. That was the, one of the rationales given as to why they never adopted it in the past. However, they reconsidered more recently, when this became a controversy at hearings they held at Guantanamo earlier in this month, and the decided for reasons that haven't been made perfectly clear, that they should have an outright prohibition on it.

Now, it just so happens that next Tuesday, the Supreme Court will be hearing arguments over the legality of these military commissions at Guantanamo Bay, and one of the reasons that they have been challenged is the contention that they have no prohibition on the use of evidence taken through torture, and that would make the illegal under a treaty the United States has signed.

BRAND: Well, I'm wondering, is the torture questions specifically outlined in the case In the Supreme Court case by the Plaintiff.

BRAVIN: Yes, yes it is. He says in his petition he's, the petitioner is a Guantanamo defendant named Salim Hamdam who has admitted being the driver of Osama bin Laden in Afghanistan, but denies involvement in bin Laden's terrorist activities. One of the issues he raises is that he is not guaranteed a fair trial, because evidence taken under torture could be admitted under the rules as they were written. And some of the friend of the court briefs have focused more specifically on the torture issue. But it's not the only reason that Hamdam and others dispute the legality of the commissions. It's one of them.

BRAND: Well, how would the process work? How would prosecutors or defense lawyers know which statements were coerced and which weren't?

BRAVIN: Well, that's one of the unanswered questions. I haven't seen a final version of the rule, and prior rules issued by the Pentagon dealing with the military commissions at Guantanamo have not been very specific about how the commissions are to operate when dealt, dealing with specific evidentiary questions that arise in the course of any trials they might hold.

So, we don't know. And one of the things, one of the questions that the chief defense lawyer, a Marine Colonel named Dwight Sullivan, raised with me yesterday when I was discussing this pending instruction with him, was who would bear the burden of proof? Does the defense have to prove that evidence introduced by the prosecution was derived through torture, or does the prosecution have to show that it wasn't? Often in legal questions, the party that bears the burden of proof has a much harder go of it than the other party.

BRAND: And that's not clear with this new policy?

BRAVIN: That question's not been answered yet.

BRAND: Wall Street Journal Reporter, Jess Bravin. His article on the administration's new torture policy is in today's paper. Jess Bravin, thank you.

BRAVIN: My pleasure.

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