Monday, September 25, 2006

Coercion, Torture, Clarification, Interpretation and Due Process

The Bush Administration and three prominent Republican senators recently announced their compromise on the allowed limits of coercion (torture) and the allowed limitation of due process when dealing with detainees (terrorists, combatants, suspects).

I don't have much to say about the first compromise, beyond the observation that coercion/torture, rightly or wrongly, has always taken place and will take place in the future regardless of how it is defined, interpreted or clarified. It is interesting to note that the allowed limit now appears to differ depending on the affiliation of the actor: Military personnel at Abu Grave (phonetic) are court-marshaled for revealed mistreatment of prisoners; but, the CIA sends prisoners to Guantanamo from secret prisons, no one asks what happened to them there and the Administration becomes very interested in clarifying what the CIA can do without subsequent fear of prosecution.

With respect to the second compromise, detainees, against whom charges are brought, apparantly will be entitled to hear sanitized summaries of evidence and testimony against them(Detainees not charged, will apparantly sit in Guantanamo with no ability to challenge their incarcaration). Since the defendant will not see the actual evidence or hear the actual testimony, there seems to be no way to cross-examine, impeach or otherwise mount an effective defense.

The Bush Administration, and now the senior Republican leadership, trust no one when it comes to their pursuit of national security, not even the Third Branch, the Federal Judiciary. What threat to national security is posed by a United States District Court Judge (subject to appellate review) reviewing the authenticity of evidence and hearing actual testimony by witnesses, then redacting information or concealing the identity of a witness where there is a probability that divulging the information or identity will harm national security in his or her independant judgment? Our national security interest is protected and the defendant gets a somewhat fairer trial. Who or what is harmed?

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