Sunday, December 05, 2004

Welcome to 1935

: Government Using evidence obtained from Torture in Gitmo "Hearings"

Now I'm getting really depressed. Yesterday I discussed how the Judicial system seems to be slipping backwards into our regressive past. Well today it is not merely Slipping but Skiing full throttle. we're now less advanced then they were in Mississippi in 1936. Oh Joy

BROWN v. STATE OF MISSISSIPPI, 297 U.S. 278 (1936) is one of those Landmark cases that every Lawyer can quote by name, it involved two black men who were whipped and hung until they confessed to crime for which they were then convicted (SOP for police of the day in the US South, follow the link and read the case, not only was the abuse shocking, but so was the readiness with which the officers admitted to it on the stand they were almost bragging of it)
This was enough to outrage even the ultra-conservative Supreme Court of the day In striking down their convictions the Supreme Court thundered:
" The rack and torture chamber may not be substituted for the witness stand.. {a}trial is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence.."
they also said "The due process clause requires that state action, .. shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process"

Well, what was obvious even to moral sensibilites of the Court of 1936 (who had previously struck down anti-child labor laws, Minimum wage laws etc), is once again back in play. 68 years later, we have this exchange, on the record, between a US Circuit Judge and a Lawyer for the DOD:
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Judge Leon asked whether a detention based solely on evidence gathered by torture would be illegal, because "torture is illegal. We all know that."

Boyle replied that if the military's combatant status review tribunals "determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it."

Judge Leon asked whether there were any restrictions on using torture-induced evidence.

Boyle replied that the United States never would adopt a policy that would have barred it from acting on evidence that could have prevented the Sept. 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power.
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Was it so naive of me to believe that a principle that had stood for 68 years was a settled part of our law and liberty? apparently so. So even though its over used these days I'll close with this thought:


Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow? Yes, I'd give the Devil benefit of law, for my own safety's sake!

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