FORMER FEDERAL JUDGES DENOUNCE USE OF TORTURE TO EXTRACT STATEMENTS OF GUILT IN MILITARY COMMISSIONS

In the case of Boumediene v. George W. Bush, to be decided in the next term of the U.S. Supreme Court, the question is whether federal judicial review of the Combatant Status Review Tribunal is an adequate substitute for the common law Great Writ of habeas corpus, when the CSRT may have relied on statements extracted by torture and other impermissible coercion. In other words, may the government extract confessions by torture and then prohibit the accused from seeking the protection of habeas corpus in federal courts?

Many entities have filed briefs as Amici Curiae seeking to bar torture as a legitimate means of information extraction without any possibility of the accused seeking relief under habeas corpus. One in particular is from former federal judges found at Scotusblog.

The former federal judges review the common law tradition in England barring torture and coercion. I want to reproduce one section because it recites that as far back as the year 1215, almost 800 years ago, the English courts ("King's Bench") abandoned the use of torture as both cruel and unreliable.

Write the former federal judges:

"More than a millennium ago, torture was allowed
in England in trials by ordeal, which required the accused
to submit to various painful tests, to decide questions of
guilt and civil liability. See A. Lawrence Lowell, The
Judicial Use of Torture, 11 HARV. L. REV. 220, 221-222
(1897). The use of such torture tactics—often involving fire
or water—was not based on any theory that such methods
would lead to reliable statements, but rather on the belief
that God would intervene to disclose the truth. See John
H. Langbein, Torture and Plea Bargaining, 46 U. CHI. L.
REV. 3, 4 (1978).

"Torture was abandoned as part of the truth-seeking
function in England in 1215, when trial by jury was
introduced. Indeed, England prided itself at that time on
its rejection of the legal system adopted by continental
Europe, which incorporated torture of criminal defendants
as a systemic element of its legal machinery. See John H.
Langbein, Torture and The Law of Proof 73 (1976). In the
late 1400s, for example, Chief Justice Fortescue of the
King’s Bench emphasized that the torture conducted in
Europe, but rejected in England, yielded unreliable results (7)
and thus did “its utmost to condemn the innocent and
convict the judge of cruelty.” John Fortescue, De Laudibus
Legum Angliae, A Treatise in Commendation of the Laws
of England 73 (Francis Gregor, trans., Cincinnati, Robert
Clarke & Co. 1874) (c. 1460-1470)." (6-7)

Consider how this squares with the dark outlook of George Bush and Dick Cheney on using torture to extract information from suspected terrorists. The American president and vice president wish to overturn a millenium of legal tradition protecting people arrested in favor of "protecting the homeland" against feared future terroristic acts. People are seized and held incommunicado solely on the basis of suspicion generated by torture and coercion. The right of the individual to be free from torture and to be granted access to lawyers as well as rights to seek habeas corpus relief in the courts have been denied in favor of putative interests of the state.