When I watch 24 every week, I never thought that the torture scenarios that confront Jack Bauer on a weekly basis come up all that often in real life. Apparently, I was wrong. Here's an AP article about Jose Padilla's latest motion to exclude evidence on the basis that it were acquired by use of torture:
Jose Padilla's lawyers want a federal judge to throw out key evidence because the alleged al-Qaida operative's arrest was based on statements from one source who claims he was tortured and another who was heavily medicated and possibly unreliable. The evidence should not be allowed at Padilla's trial set for this fall based on an FBI affidavit "that distorted the facts in an apparent disregard for the truth," Padilla attorneys [Andrew Patel, Michael Caruso, Tony Natale, and Orlando do Campo] said in a court filing.
Kinda scary, no? And I don't think I'm against torture in all cases. I take the view of one of my law school professors, Alan Dershowitz, that we should debate the issue about when torture can be used and who should be accountable when it is. Certainly, a judge should have to approve it where practicable; the standard for employing it would have to be very high; whatever evidence is obtained by use of the torture should not be admissible in court; and it should only be used in life or death situations where absent torture people would die. Even in these *very* limited circumstances, I'm still extremely queasy about it, but it strikes me that there may be a case of mass terrorism where a large number of people would die absent torturing one of the involved terrorists. Suppose a suspect knew the location of a bomb that was to go off in a matter of hours that would kill thousands of people. If that person absolutely refused to disclose where that bomb was, would anyone chose letting the bomb go off over trying to extract the information from the captured terrorist? But Padilla's case is the other end of the spectrum. With Padilla, the feds were trying to build a case against someone who was already in custody. I can't imagine torture in those circumstances could be justified, and certainly such evidence -- if truly acquired by use of torture -- should not be admissible in a court of law.
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Dershowitz's "sunlight-is-the-best-disinfectant" theory of torture is novel, but it really gets us into a slippery slope. I'm not sure there's a practical way of demarcating the boundaries. How would the public (and the world) perceive an American judiciary, ruling on such "torture motions"?What would that do to the integrity of our judiciary? Finally, if we had the process proposed by Dershowitz, would it really prevent torture from occurring outside that process? (I think it would not).
ReplyDeleteThe government tortures the law relating to the 4th amendment way too often. Why do you think they teach the officers caselaw? Do you think it is so they will comply with the law? No, it is to ensure they fit the facts into a particular exception so that an otherwise illegal siezure would be deemed legal. Look at what the Marines did in Hayditha (sp?). They filed false reports and planted a gun. This is what people do when there is nobody to hold anybody accountable for thier actions. That group of Marines that killed those civillians mine as well have been City of Miami cops planting a gun on a homeless guy they just shot.
ReplyDeleteThis is not a comment on the post but rather I wanted to alert everybody to a recent 11th Circuit Case, U.S. v. Valnor. (It's posted on Prof. Berman's blog). Aside from the fact that the 11th affirmed an upward variance in a Zloch case what caught my attention is that the Govt argued that the appellate waiver exception was not triggered when Zloch "varied" upward as opposed to "departing" upward. (See footnote 1) Sounds like we should all review the appellate waiver provision in the plea agreements and make sure it includes language that if the Judge orders an upward variance under Booker that the Defendant can appeal.
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