On Torture, the Constitution, and the Exclusionary Rule

I’m going to shift gears today from my recent series of posts and talk about something that has nothing to do with elections or California politics.  Instead, I’m going to discuss the question of what to do with the prisoners currently being housed at the “GITMO” — The Guantanamo prison facility built to house terrorism suspects.

President Obama has proposed dividing the GITMO prisoners into five categories, each with a different proposed treatment.  To cut to the chase, I agree with Obama about four of his five categories, but I take strong exception to how he proposes to deal with the fifth category.

The easiest category to address is those prisoners who apparently did nothing wrong — other than being at the wrong place at the wrong time.  Those prisoners should be promptly released.  They should also (although Obama hasn’t proposed this) be paid generous compensation for their wrongful imprisonment and be offered the formal apology of the U.S. government for its misdeed in holding them these many years without good cause.

A second category, at the other end of the spectrum, is those for whom there is good evidence supporting criminal prosecution on terrorism or other criminal charges.  They need to be brought to the U.S. and quickly brought to trial, with the full protections accorded by the U.S. Constitution.  Hopefully, justice will be done.

The third category is those for whom there is strong evidence of illegal acts of war.  They need to be treated as prisoners of war and tried under the military justice system, although again with the proper Constitutional protections afforded by that system.

A fourth category is those who committed no offense under U.S. law, but appear to have committed criminal acts properly addressed by another country’s justice system.  Unless there is good evidence that trial by that country would amount to unwarranted persecution, those prisoners should be promptly extradited to the appropriate country and brought to trial there. 

Finally, there’s one last, and highly controversial, category — those for whom there is good evidence of criminal offenses, including terrorism, but some of the evidence necessary for conviction was obtained by the use of torture or other means that violate U.S. Constitutional rights.  President Obama has proposed that these prisoners be relegated to a kind of permanent confinement limbo — detention without trial — due to their inherent danger if released.  I find this highly problematic.  It maintains the same fiction that the President bravely spoke out against during the presidential campaign — that practical expediency can justify voiding the Constitution’s protections for individual rights.  That assertion was wrong when applied to hundreds of prisoners; it’s still just as wrong even if only applied to two or three.

The crux of the problem is the exclusionary rule.  This rule, adopted by the Warren Court in the 1950s and 1960s, says that if evidence was obtained in violation of a defendant’s constitutional rights, that evidence cannot be used to convict the defendant.  A corollary is what’s often referred to as the “fruit of the poisonous tree” doctrine.  That rule says that not only is the improperly-obtained evidence excluded; so is any evidence developed based on the excluded evidence.  A classic example would be a murder suspect who’s interrogated without informing him of his Miranda (Fifth Amendment) rights.  If the suspect, during that interrogation, tells the police where he hid the murder weapon, not only his admission but also the murder weapon itself would be excluded from use as evidence.   The Supreme Court explained that part of the rule’s purpose was prophylactic — to deter police from being tempted to use improper techniques by denying them the “fruit” of such improper and unconstitutional actions.

The exclusionary rule is a very powerful and important rule.  It has done much to reform the activities of police and prosecutors.  However, courts have come to recognize a wide variety of exceptions to the exclusionary rule — situations where the exclusion of evidence isn’t warranted in spite of the Constitutional violation.  I would suggest that this last class of GITMO prisoners may warrant creation of an additional category of exception.

There’s little question that some GITMO prisoners were tortured.  There’s also little question that the evidence obtained by such torture, while potentially valuable, has reduced evidentiary value because it was obtained through torture.  Much psychological evidence shows that, under torture, a prisoner will say almost anything, including obvious falsehoods, to stop the pain.  There is, further, little question that an exclusionary rule absolutely prohibiting the use of evidence obtained during torture is a powerful deterrent to the use of torture.  Unfortunately, under the Bush Administration, it was apparently not powerful enough. 

We’re now left with a small group of prisoners who, under torture, revealed information implicating them of serious crimes.  Presumably, additional corroborating evidence has since been obtained, perhaps as the “fruit” of information obtained through torture.  The problem is that if all this evidence is excluded, there may well not be enough evidence to obtain a conviction.  Still, it’s not right or Constitutional to hold these prisoners indefinitely without allowing them the opportunity to try to prove their innocence.  What to do?

My suggestion, which would eventually have to be accepted by a court, probably the U.S. Supreme Court, would be to create a very limited and partial exception to the exclusionary rule for this situation.  To begin with, this exception would need to be retrospective only.  Its very creation would serve notice that it could not be invoked to “save” evidence obtained from future application of torture.  Second, the exception, while it would allow the introduction of evidence obtained through the unconstitutional use of torture at GITMO or other locations, would also allow the defense to introduce any and all evidence relevant to showing the questionable value of that evidence in terms of its credibility.  Third, and perhaps crucially, the exception would create a presumption that evidence obtained through torture was not credible, and the burden would be on the prosecution to show, by clear and convincing evidence, that the evidence had sufficient credibility to allow its introduction.  

Such a rule would be far from perfect, which is an important reason why its use would need to be limited to being retrospective only.  If allowed to be use in future instances, it could fatally undermine the prophylactic value of the exclusionary rule and encourage extremely dangerous abuse of the state’s police powers.  Further, the rule would also sap the value of the “poisonous fruit” doctrine, because the secondary evidence might not be directly linked to the torture, and therefore might have reasonably high credibility.  (Going back to the previous example, while the suspect’s confession might be of questionable credibility, the murder weapon, including such things as fingerprints, evidence of recent use, etc., would not share that lack of credibility.)

While the Bush administration’s actions have created a Hobson’s choice for dealing with those who underwent torture, the limited exception to the exclusionary rule that I have outlined seems far preferable to President Obama’s (and former President Bush’s) proposal of permanent unconstitutional detention.

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