Over at Crooked Timber, Kieran is looking for an explanation of statements by Justice Department official Brian Boyle at a recent court hearing about the use of evidence obtained by torture. The press accounts I have seen suggest that the military is fine with using evidence obtained by torture against the Guantanamo detainees. Kieran suggests that this is “the latest effort by legal officials of the U.S. Government to get Americans to agree that the use of torture by the military is no big deal.”
I have some very tentative thoughts that might provide a bit of context. Not justification, mind you, but context. I make these points with some important caveats: I am no expert in the law surrounding torture, international law, or military law, and I haven’t been following this case closely. If someone with more knowledge in this area sees an error, I would be delighted to post a correction. Still, my hope is that I can explain the picture a bit better than press reports have done.
First, the law. No one actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them such as the Geneva Convention, whether those rights are binding in federal court. We know from the Supreme Court’s decision last summer in Rasul v. Bush that the federal courts have jurisdiction to consider the question, but we just don’t know what the answer is. Why is that? It’s because there are surprisingly few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here — cases that plausibly might include United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager — are generally too splintered, unsatisfying, factually different, and (in some cases) too dated to tell us a lot. No one really knows how the courts (and the Court) are going to answer these questions. If you take the Holmesian view that law consists of “prophecies of what the courts will do in fact”, right now this area of law is a big question mark.
Faced with that uncertainty, the Bush Administration has taken a minimalist approach. Although I haven’t followed the latest Gitmo cases closely, my general impression is that they’re not inclined to say that a detainee has a particular right unless a court affirmatively rules that this is so. This will strike some as a brave defense of an unpopular but correct constitutional position; others as a conventional lawyerly tactic; others as misguided and unreasonable; and still others as an egregious violation of human rights. Whatever your view both on the merits and on the tactics, this seems to be the pattern of the Administration’s litigation positions.
Boyle’s comments follow from that position. As best I can tell from news reports — and I have to be extra cautious here, because the news reports I have seen don’t provide a lot of details — the Guantanamo detainees in the case before Judge Leon have alleged that they have a constitutional right to be released because the evidence needed to justify detaining them was obtained by torture. Boyle responded with the minimalist position that as a matter of law, the detainees do not have the constitutional rights needed to trigger the remedy of release. He seemed to be saying that the constitutional minimum was reliability of the evidence, not the specific procedures that were used to obtain the evidence. Because on Boyle’s view the detainees don’t have those rights, the violations of those asserted rights cannot provide a remedy even assuming that the detainees have been tortured.
What to make of this? I think the point is not that the U.S. government is trying to persuade people that torture by the military is “no big deal.” Rather, the point is that — for better or worse — the Administration is taking a controversial litigation position about constitutional law and waiting for the courts to tell them that they’re wrong. (Something that the courts have been doing pretty consistently, I might add.)
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