Standards on evidence obtained by torture

In the UK, the Law Lords ruled early this month that evidence obtained by torture is inadmissible in court, including evidence obtained by foreign governments (such as the United States) through the use of torture--and the burden of proof that the evidence was not obtained by torture falls upon the government. Lord Bingham stated, "The English common law has regarded torture and its fruits with abhorrence for over 500 years ... I am startled, even a little dismayed, at the suggestion...that this deeply rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute." The panel of seven judges was unanimous in its ruling that the evidence of torture was inadmissible, but divided on the standard the government must overcome to demonstrate the evidence was not admitted by torture once a defendant produces a "plausible reason" to think that it was. Three of the judges (including Lord Bingham) argued for a standard that the government show "no real risk" of basis on torture, the other four that the government show it "on the balance of probabilities."

In the United States, President Bush and Vice President Cheney have argued strongly against any restrictions on the use of torture by the United States, while at the same time claiming that the United States does not use torture. While Bush has recently and reluctantly agreed to support the McCain amendment on torture, that amendment states that "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." Ten classified pages have just been added to that manual, leading some to suggest that this has created a way around the McCain amendment.

Fortunately, however, the McCain amendment goes on to say that "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." It defines "cruel, inhuman, or degrading treatment or punishment" as "the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984."

But there seems little question that Bush and Cheney want to push the limits as far as they possibly can.