November 20, 2006 at 16:13:25

Kill Bill - Neutering Bush's Torture Law

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By Bob Geiger (about the author) Page 2 of 4 page(s)

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Narrowing the Definition of 'Unlawful Enemy Combatant'

The MCA defines an unlawful enemy combatant as follows:

"A person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).

The Dodd bill amends the definition as:

"An individual engaged in hostilities as part of an armed conflict against the United States who is not a lawful enemy combatant.''

Essentially, this narrows the definition to someone who would traditionally be considered an armed enemy and removes the broad discretion that would allow the government to arbitrarily define any U.S. citizen who they believe "purposefully and materially supported hostilities" against us (or our allies) as the enemy.

Says Senator Dodd: "The Administration's approach allows the president to remove anyone he so chooses from America's standard jurisprudence and designate him or her as an 'unlawful enemy combatant.' My legislation allows the designation of 'unlawful enemy combatants' only for those individuals engaged in armed conflict against the United States. This provision seeks to curtail potential abuse of the enemy combatant designation so that holding individuals in detention indefinitely without a trial will prove to be the exception rather than the norm."

Prohibiting Use of Information Gained by Torture as Evidence

Dodd's legislation acknowledges that torture has been proven ineffective in extracting intelligence information and points out that America's standard for treatment of prisoners will be the bare minimum used by others against our own troops.

"My bill further promotes humane treatment of military personnel by prohibiting the use of evidence gained by coercion in a trial," said Dodd last week. "Such a provision is critically important for two reasons. First, the use of torture has been proven ineffective in interrogations when a detainee simply says what he believes an interrogator wants to hear in order to stop the torture. Second it deprives foreign militaries the ability to cite US actions to justify their own misconduct toward future American POWs."

As it was passed, the MCA says the following regarding torture:

A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

- the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

- the interests of justice would best be served by admission of the statement into evidence.

The interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

What this means: The ends justifies the means and we can torture anyone the White House says might be a terrorist or a terrorist sympathizer.

Dodd's legislation strikes these sections entirely and replaces them with this:

A statement obtained by use of coercion shall not be admissible in a military commission under this chapter, except against a person accused of coercion as evidence that the statement was made.

What this means: We're the United States of America and we don't torture people.

Empowering Military Judges to Exclude Unreliable Hearsay Evidence

The Republican torture bill basically puts the burden of proof on the defense, not the prosecution which, prior to the Bush administration, was not the way our justice system worked.

The MCA says:

Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value."

So, when it comes to hearsay -- which is information not based on direct knowledge of the truth -- you're essentially guilty until proven innocent under the existing law.

The Dodd bill replaces the last (italicized) part of that section with the following: "...if the military judge determines, upon motion by counsel, that the evidence is unreliable or lacking in probative value.''

In other words, the judge can toss hearsay evidence if it's questionable or utter nonsense -- the defense doesn't need to prove it's nonsense.

Authorizing the U.S. Court of Appeals for the Armed Forces to Review Decisions by Military Commissions

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