Ah...Torture With Drills...That's FREEDOM for Ya!

British-trained police in Iraq 'killed prisoners with drills'
By Francis Elliott, Raymond Whitaker and Kim Sengupta
Published: 20 November 2005


British-trained police in Iraq 'killed prisoners with drills' Britain has been dragged into the growing scandal of officially condoned killings in Iraq

British-trained police operating in Basra have tortured at least two civilians to death with electric drills, The Independent on Sunday can reveal.

John Reid, the Secretary of State for Defence, admits that he knows of "alleged deaths in custody" and other "serious prisoner abuse" at al-Jamiyat police station, which was reopened by Britain after the war.

Militia-dominated police, who were recruited by Britain, are believed to have tortured at least two men to death in the station. Their bodies were later found with drill holes to their arms, legs and skulls.

The victims were suspected of collaborating with coalition forces, according to intelligence reports. Despite being pressed "very hard" by Britain, however, the Iraqi authorities in Basra are failing to even investigate incidents of torture and murder by police, ministers admit.

The disclosure drags Britain firmly into the growing scandal of officially condoned killings, torture and disappearances in Iraq. More than 170 starving and tortured prisoners were discovered last week in an Interior Ministry bunker in Baghdad.

American troops who uncovered the secret torture chamber are also said to have discovered mutilated corpses, several bearing drill marks.

Adam Price, the Plaid Cymru MP for Carmarthen East and Dinefwr, who uncovered the death at al-Jamiyat police station, called for an immediate UN investigation into police torture. "The Government keeps on saying that respect for human rights is a pre-condition of withdrawal. Well, it should be a pre-condition for UK soldiers to continue risking their lives in Iraq," he said.

Mr Reid said: "I am aware of serious allegations of prisoner abuse at the Jamiyat, including two deaths in custody. We take this very seriously. We have been pressing the Iraqi authorities very hard to investigate these allegations thoroughly and then to take the appropriate action."

Ministry of Defence sources privately confirm that the two SAS soldiers seized and held in Jamiyat in September were investigating allegations of police torture prompted by the discovery of the bodies.

British forces in armoured vehicles smashed their way into the station to rescue them, but officers have admitted they are powerless to protect civilians in southern Iraq from militias, and military patrols have been withdrawn from central Basra in the wake of the September clashes.

In the US-controlled districts of Iraq, some senior military and intelligence officials have been accused of giving tacit approval to the extra-judicial actions of counter-insurgency forces.

Critics claim the situation echoes American collaboration with military regimes in Latin America and south-east Asia during the Cold War, particularly in Vietnam, where US-trained paramilitaries were used to kill opponents of the South Vietnamese government.




jurisprudence
Tainted by Torture
How evidence obtained through coercion is undermining the legal war on terrorism.
By Phillip Carter
Updated Friday, May 14, 2004, at 6:47 PM ET

There are plenty of good reasons to avoid using torture in interrogations. It's an immoral and barbaric practice condemned by most Western nations and theological traditions, for starters. International human rights law and U.S. criminal law both outlaw it. And as if that's not enough, there is serious doubt as to whether torture even produces reliable intelligence, as Mark Bowden explains in the October 2003 issue of the Atlantic Monthly.

Add this additional reason to the list: Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate.

Thanks to a report in Wednesday's New York Times, we now know that the United States has intentionally used (with the sanction of the highest levels of government) torture tactics to pry open the mind of Khalid Sheik Mohammed, alleged to be one of al-Qaida's top masterminds. According to the Times, "C.I.A. interrogators used graduated levels of force, including a technique known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown." Gen. Peter Pace, the vice chairman of the Joint Chiefs of Staff, described such tactics as a violation of the Geneva Conventions. And the FBI has instructed its agents to steer clear of such coercive interrogation methods, for fear that their involvement might compromise testimony in future criminal cases.

So, setting aside for a moment all the moral, political, and practical problems of such tactics (staggering though these problems may be), as a purely legal matter, the use of torture during interrogation has so many negative consequences that it may ultimately allow some accused terrorists to win acquittals merely because it will lead to suppressed evidence of their factual guilt.

Evidence (such as a confession) gathered as a result of torturing a person like Mohammed will be excluded at his trial, if he ever sees one. This is true both in federal courts, which operate under the Federal Rules of Evidence, and military courts, which operate under the Military Rules of Evidence. Both the Fifth Amendment's right against compulsory self-incrimination and the 14th Amendment's guarantee of due process preclude the use of a defendant's coerced statement against him in criminal court. In addition, any evidence gathered because of information learned through torture (sometimes called "derivative evidence") will likely also be excluded. Furthermore, the Supreme Court suggested in its landmark Fifth Amendment case, Oregon v. Elstad, that it might exclude evidence gathered after the use of any coercion, regardless of attempts by police and prosecutors to offset the coercion with measures like a Miranda warning. If Mohammed were prosecuted, and a court followed the line of reasoning set forth in Elstad, he might well see the charges against him evaporate entirely for lack of evidence.

Right now, the Justice Department has no plans to criminally prosecute Mohammed or other top al-Qaida leaders (like Abu Zubaida) currently being held by the United States in shadowy detention facilities overseas. But federal prosecutors have filed charges against alleged al-Qaida member Zacarias Moussaoui for being part of the 9/11 conspiracy. And the Supreme Court is now considering whether trials of some sort are constitutionally required for other alleged terrorists. Problems with the Moussaoui case reflect the problem with evidence obtained through coerced confessions. In that case, it's not the government that seeks to bring in the tortured al-Qaida leaders' out-of-court statements—it's Moussaoui, the defendant. However, the result may be the same. Such out-of-court statements will likely be challenged as hearsay by whatever side isn't trying to bring them into court. And under the applicable hearsay exception, for declarations against interest [see Rule 804 (b)(3)], such statements are only admissible if they carry certain indicia of reliability. Given the questionable ability of torture to produce reliable information, this will be a hotly contested issue. It's not clear whether this evidence will ever be admitted to court.

This torture of top al-Qaida leaders may also cause problems for the government were there to be a trial for the alleged "dirty bomber" Jose Padilla. The tip that led to Padilla's initial detention on a material witness warrant in May 2002 came from intensive CIA interrogations of Zubaida, a close associate of Osama Bin Laden. In December 2003, the 2nd Circuit Court of Appeals ordered that Padilla be released from military custody and either charged in federal court or released. However, any prosecution of Padilla could be very problematic for the government, because the case for his guilt rests mostly (if not entirely) on secret interrogations of al-Qaida leaders, which now appear to have involved torture. If a criminal case is ever brought against Padilla, his lawyers are sure to challenge this crucial evidence on a number of grounds, including reliability and the fact that it was procured with torture in a way that "shocks the conscience."

Interestingly, such problems would not have arisen had these suspects been hauled before a military tribunal at the outset. The Pentagon's procedural rules for tribunals allow evidence to be admitted if it "would have probative value to a reasonable person." These rules contain no provision for the exclusion of involuntary statements, and on their face, do not allow the presiding officer of such tribunals to rely on Supreme Court precedent or federal case law to decide issues of evidence. Presumably, these tribunals were designed to allow for the admission of evidence from dubious circumstances, including the "intensive questioning" of Mohammed and Zubaida. So, if the Pentagon moves forward with its plans to try al-Qaida members before these courts, it may be able to evade this problem altogether.

However, even that won't solve the problem for the rest of the legal system, which only allows evidence obtained through constitutional means. By using torture to question the top terrorists it has in custody, the government has effectively sabotaged any future prosecutions of al-Qaida players—major and minor—that might depend on evidence gathered through those interrogations. It's plausible that skilled interrogation by the FBI, in accordance with American law, could have produced valuable evidence of these terrorists' guilt, which could have been used in court. But now that torture has been used, that may just be wishful hindsight.

As a nation, we still haven't clearly decided whether it's better to prosecute terrorists or pound them with artillery. But by torturing some of al-Qaida's leaders, we have completely undermined any efforts to do the former and irreversibly committed ourselves to a martial plan of justice. In the long run, this may be counterproductive, and it will show that we have compromised such liberal, democratic ideals like adherence to the rule of law to counter terrorism. Torture and tribunals do not help America show that it believes in the rule of law. But if CIA officials continue to use tactics that will get evidence thrown out of federal court, there will increasingly be no other option.
Phillip Carter is a former Army officer who writes on legal and military affairs from Los Angeles.

Article URL: http://www.slate.com/id/2100543/