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Speaking to Newsweek's Jon Meacham, President Obama gave a disconcerting response to a question about the new military commissions (emphasis mine):
Well, look, this is an example of a hard problem. And I acknowledged this before I was sworn in. You've got a situation where, in some cases, individuals should not have been detained, but after having been detained for six years may not have a very friendly view towards the United States. You have some people who definitely should have been detained and should have been immediately charged, but were not and, in some cases, because of the manner in which evidence was obtained, it makes—it's going to be very difficult for us to prosecute them in Article III courts.When I spoke to the ACLU's Jonathan Hafetz last week, he expressed concern that the military commissions would allow some kind of back-channel evidence obtained through coercive interrogation methods. "There will be an attempt to continue to launder coerced evidence through lax hearsay rules," Hafetz said. According to press reports, the commissions wouldn't allow evidence obtained through torture, but they would allow hearsay.
On the one hand, the president's remarks could simply refer to the use of hearsay as evidence, on the other, I'm skeptical that hearsay is the only thing preventing these suspects from being tried in federal court. But here are my questions: Does the ban on information gained through torture refer to only torture performed by Americans? What if the evidence is intelligence passed on by foreign sources that was obtained through torture, does the same restriction apply?
-- A. Serwer
