I hate that I’m now clinging to scraps like this to make myself happier about President Obama’s efforts to overturn torture, but this is an improvement over the Bush Administration. The acting head of OLC has determined that military commissions cannot use statements gotten through torture to convict detainees.
The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.
The conclusion, explained in a confidential memorandum whose contents were shared with The Wall Street Journal, could alter significantly the way the commissions operate — and has created new divisions among the agencies responsible for overseeing the commissions.
Of course, the WSJ finds the folks at DOD who are upset by this decision so as to push back against even this minimal improvement (there are those at DOD who don’t agree with this sentiment).
Defense Department officials warn that the Justice Department position could reduce the chance of convicting some defendants. Military prosecutors have said involuntary statements comprise the lion’s share of their evidence against dozens of Guantanamo prisoners who could be tried.
Also note, this decision (made in early May) should have been made by Obama’s nominee to head OLC, Dawn Johnsen. But her confirmation still languishes. Maybe Senator Franken can change that.