Is Bush being disobeyed on torture?

Indications increase — documented through the Freedom of Information Act, by concerned FBI agents and troubled counterintelligence sources — that some Guantanamo detainees are being brutally assaulted and even tortured. These reports, including U.S. Navy documents, seem at odds with the president’s emphatic reaction to the Abu Ghraib photographs: “We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our soul and our being.”

A Dec. 2 federal court hearing in Washington shed some illumination on whether the president’s abhorrence of torture is being ignored down below in the U.S. base in Cuba. Lawyers were in that court on behalf of some of the Guantanamo detainees held there for very long periods.

As reported by the Associated Press, Judge Richard Leon asked Deputy Associate Attorney General Brian Boyle whether detention is legal if the evidence on which detainees are being held was extracted entirely through torture. “Torture is illegal,” said the judge. “We all know that.”

Mr. Boyle answered that if the status-review military tribunals for these detainees “determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.” (As Judge Leon had noted, evidence obtained through torture is, to say the least, questionable.)

At the December hearing, Judge Leon pressed Mr. Boyle further, asking whether the government recognizes any restrictions on evidence obtained by torture. The judge had reasonably appeared to regard Mr. Boyle’s use of the term, “evidence of questionable provenance,” as including the use of torture.

This time, Mr. Boyle was more direct in his answer, saying that — as the Dec. 3 Los Angeles Times reported — “the United States never would adopt a policy that would have barred it from acting on evidence that could have prevented the September 11 terrorist attacks even if the data came from questionable practices like torture by a foreign power.”

Mr. Boyle may have been referring — although he was not explicit — to the practice of “extraordinary rendition,” where the CIA has sent hard-to-track detainees to accommodating countries where torture is practiced. Accounts of this covert outsourcing of torture were part of the recent congressional debate on such a provision approving the practice in the September 11 intelligence-reform bill (and in a startling article by Dana Priest in the December 27 Washington Post).

Language in the Houseversion, which would have made this relay system of torture an official American policy, was struck out of the final bill. This was fortunate, considering the world’s view of us, and our view of ourselves. But we don’t know if itstillcontinues covertly.

JudgeLeon pressed on, asking the deputy associateattorney general whether American courts could review cases of detainees where evidence has been obtained from torture by U.S. (not foreign) personnel.

Mr. Boyle replied that torture is against American policy and any such allegations would be “forwarded through command channels for military discipline.”

But that’s not enough. We still need our civilian courts to decide whether we permit torture.

One observation of note is that Mr. Boyle didn’t retract his earlier admission (where he stated that evidence extracted from torture in other countries can be used against non-citizen detainees being held for interrogation as enemy combatants to discover their links to terrorists).

So, although Congress did not include the outsourcing of torture in the September 11 intelligence-reform bill, that kind of evidence, according to this Justice Department official, is not prohibited.

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