New Rule Will Bar Evidence Gained Through Torture

The Pentagon issues a new rule that will prevent certain evidence from being used in military trials of suspected terrorists at Guantanamo Bay. The rule bars the use of any evidence created under conditions of torture.

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The Pentagon is expected to issue a significant new rule this week. No longer will evidence gained under torture be allowed in the trials of suspected terrorists at Guantanamo Bay. The move comes just days before the Supreme Court hears arguments over the very legitimacy of the trials, which are called military commissions.

NPR's Jackie Northam reports.

JACKIE NORTHAM reporting:

From the first days of the so-called war on terrorism, the Pentagon has maintained that it does not condone the torture of suspected terrorists. But questions remain, particularly after the Abu Ghraib abuse scandal and revelations that the administration quietly drew up new, narrow definitions of torture.

Now, as the administration is about to argue the validity of the Guantanamo military trials, the question of torture rises again. Officials say that the Pentagon is issuing a new rule. No evidence obtained through torture can be used in the trials. Major Michael Shavers, a Pentagon spokesman, says up until now the Defense Department did not believe a written rule on this was necessary.

Major MICHAEL SHAVERS (Pentagon spokesman): The president has been clear in stating that the United States does not condone torture. And the Department of Defense, of course, abides by that admonition. And we had believed that a specific commission rule was not necessary and would potentially erroneously suggest that torture had actually occurred.

NORTHAM: Defense attorneys arguing against the military commissions say that the issue of evidence obtained through torture undermines the validity of the process. Lieutenant Colonel Brian Broyles, one of the defense lawyers at the Office of Military Commissions, says it's unclear what this new rule will do.

Lieutenant Colonel BRIAN BROYLES (Office of Military Commissions): It could entirely be a cosmetic change to the rules that would allow the prosecution to use evidence that was derived from torture.

NORTHAM: Broyles says if a detainee, for example, admits to being a member of al-Qaida while being tortured, then under this new rule his statement could not be used in court. But if they move the detainee to another room and continue to question him, are those new statements barred? Broyles points to another hypothetical.

Lieutenant Colonel BROYLES: Two guys are side by side. Prisoner No. 1 is beaten. They then walk into cell No. 2 and say, okay, we have some questions for you, and that person immediately starts talking. Was that statement derived from torture?

NORTHAM: Much depends on the definition of torture, says Michael Scharf, with the Case Western Reserve University School of Law and the director of the Cox Center War Crimes Research Office. Scharf says most decisions about evidence at the military commissions are made by its chief prosecutor, Colonel Morris Davis. Earlier this month he gave a speech and took questions from students at Case. Scharf says Davis was asked what he would consider to be torture.

Mr. MICHAEL P. SCHARF (Case Western Reserve University School of Law): Colonel Davis said, I will tell you one thing, that if someone stuck a hot iron in someone's eye, I would think that was torture. And that actually troubled me, because he used a very egregious example as something that he would consider torture, which might imply that things less than that would not, in his opinion, amount to torture.

NORTHAM: The other unanswered question under this new rule would be who has the burden of proof over allegations of torture, the defense, which has to prove it happened, or the prosecution, to show there was no torture? Either way, the new rule will likely come up during arguments before the Supreme Court next week.

Jackie Northam, NPR News, Washington.

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