Torture, trials, and tribunals

What’s the link between the executive order authorizing military tribunals and the practice of torture?

Phil Carter points out that using torture will make it virtually impossible to try terrorists — and not just the ones we torture — in civilian courts: We’d have to prove that each piece of evidence for the prosecution wasn’t the product, or product of a product, or product of a product of a product, of torture.

Of course, that’s the beauty of the “military tribunals”: the brand-new rules of evidence invented for them don’t include the exclusionary rule. Instead, they would allow the admission of admission of any evidence that would “have probative value to a reasonable person.”

Those of us who predicted that creating military tribunals would encourage the use of torture stand, unhappily, vindicated.

I thought then, and I think now, that the primary purpose of that executive order was to force liberals and Democrats to oppose it in defense of bedrock Constitutional principle, thus making them look soft on terrorism. That tactic worked beautifully, setting up the Republican victories in 2002 and creating the impression, which has lasted until the present, that Bush and his allies are somehow special in their opposition to terrorism.

The fact that, two years later, no one has yet been tried under that order reinforces my belief that it was primarily a political initiative rather than a national-security measure. By that standard, its success has been remarkable.

But Phil’s essay reminds us that the order had a secondary value: It permitted the military and the CIA to torture al-Qaeda suspects without jeapordizing possible criminal trials.

Think about this the next time someone remarks on the prevalence of “irrational Bush-hatred.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

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