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Torture Enters the Courtroom

Judge Andrew P. Napolitano on

For the first time in American history, a federal judge last week authorized the government to admit as evidence in a criminal case in a public courtroom words uttered by the defendant that were obtained under torture.

The fruits of torture -- which is any cruel or degrading or intentionally painful or disorienting behavior visited upon a person in captivity to induce compliance or to gratify the torturer -- are not permitted in any court in the United States, and their inducement is criminal.

Here is the backstory.

Abd al-Rahim al-Nashiri, a low-level former member of the Taliban, is accused with others of plotting the suicide bombing of the USS Cole in October 2000 that killed 17 American sailors. He has been in U.S. custody since 2002 and at the U.S. Naval Base at Guantanamo Bay, Cuba, since 2004. When he was first captured, he was turned over to the CIA for interrogation, not the Department of Justice for prosecution.

The practice of the federal government immediately following 9/11, when it captured anyone overseas from whom it believed it could extract national security information, was to hand the person over to the CIA for torture -- the feds call it "enhanced interrogation" -- at a "dark site" in a foreign country with which the U.S. does not have an extradition treaty.

The reason for the location of the torture was the erroneous belief by DOJ and CIA officials that torture conducted or condoned by American personnel is not prosecutable if it occurs outside the U.S.

 

That has never been the law in the U.S., but it has been the practice of the DOJ and the CIA to shield their personnel with secrecy when they are caught engaging in torture in a foreign country.

However, because either the tortured person or someone connected to whatever the tortured person revealed was to be tried in a federal court, and because no federal court can admit evidence against a defendant that was obtained under torture, the feds devised a scheme around this.

That scheme called for FBI "clean teams" to interrogate the tortured person after the torture was completed, using conventional and lawful interrogation techniques. These techniques often proved more successful than CIA torture. Because these techniques were lawful, and the person being interrogated was advised of his rights and treated humanely by the FBI, the information thus obtained from him was usable in federal court.

At trial, a defendant can always demonstrate that he had been tortured, not to obtain the jury's sympathy but to enable his lawyers to argue to the jurors that they should disregard as unconstitutional, immoral, unlawful and un-American whatever evidence the torture produced.

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