De-Cloaking Torture: Boumediene and the Military Commissions Act

Alan W. Clarke, Utah Valley University

Abstract

Legal Cover for Torture in the War on Terror

Notwithstanding robust evidence that the U.S. engages in extraordinary renditions to countries that torture, and that it engages in practices that many consider to be torture, the U.S. administration adamantly denies that it tortures, or sends people to nations that do. Indeed, President Bush has declared that the United States “will always be the world’s leader in support of human rights.” Moreover, despite criticism from international legal scholars, the U.S. persistently maintains that it follows international law and its treaty obligations.

The Military Commissions Act of 2006 (MCA) is the endgame for torture. The Bush Administration seeks to prosecute non-citizen detainees outside of the United States using secret, coerced and hearsay evidence, without interference from U.S. habeas courts. Appeals are limited. It also leaves a loophole for the use of evidence obtained by outright torture, and can render evidence of torture immune from disclosure. If the Administration succeeds, it can hide, or at least insulate, its coercive interrogation program. If, on the other hand, these non-citizen detainees gain access to U.S. courts, disclosure becomes probable. While not likely, this could even expose complicit officials to civil or even criminal prosecution. The stakes are high.

This paper traces the legal and political moves of the Bush Administration in creating (as David Luban puts it) a U.S. “torture culture” to be used as a tool in the “war on terror.” It then demonstrates how the Military Commission Rules of Evidence, if not limited by the upcoming Boumedine case in the United States Supreme Court, can and likely will, be used to cloak torture.