Reading the Statute Would Have Been Too Much Trouble

From this morning’s New York Times Corrections section:

Editors’ Note

An article in the Week in Review last Sunday reported on the debate over how to try 14 terror suspects recently transferred to United States military custody. The Bush administration has proposed that the suspects be tried in military commissions under procedures the White House has presented to Congress, including rules that would allow the admission of evidence obtained under coercion or duress. Civil libertarians, on the other hand, say the suspects should get the stronger due-process protections of an ordinary court-martial.

The article included comment from Richard Goldstone, the South African chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, who objected to the provision “that evidence would be admitted even if obtained under duress or torture.”

The administration disputes this characterization of the proposed rules, saying they do prohibit the introduction of evidence obtained through torture. The article should have included this viewpoint, and should have reflected the fact that part of the debate is about how the term “torture” is interpreted.

The Times obviously viewed this correction as important, since it had the “Editors’ Note” designation, rather than the usual “For the Record,” and the dispute over the administration’s proposal to try detainees is a topic now being given front-page coverage by the paper.

In that context, I was struck by the last paragraph of the correction: the administration says its proposed rules governing military commissions prohibit the use of evidence obtained through torture, and the Times erred by not including this “viewpoint.” Well, it isn’t really a “viewpoint.” I suspected that one could resolve this issue by–you probably guessed it–reading the proposed rules.

Like Section 948r:

§ 948r. Compulsory self-incrimination prohibited; statements obtained by torture

(a) IN GENERAL.—No person shall be required to testify against himself at a commission proceeding.

(b) STATEMENTS OBTAINED BY TORTURE.—A statement obtained by use of torture, as defined in 18 U.S.C. § 2340, whether or not under color of law, shall not be admissible against the accused, except against a person accused of torture as evidence the statement was made. [Ed.: Thus, the prosecutor can use the fact that a defendant extracted statements from others using torture as evidence against a person charged with torture, but the content of such a statement cannot be admitted for the truth thereof.]

(c) STATEMENTS NOT OBTAINED BY TORTURE.— No otherwise admissible statement may be received in evidence, including statements allegedly obtained by coercion, if the military judge finds that the circumstances under which the statement was made render it unreliable or lacking in probative value.

So the fact that the administration’s proposal does not allow the use of evidence obtained by torture is just that–a fact, not a “viewpoint.” It appears obvious that the reporter who wrote the original story didn’t bother to read the proposed statute; he could have found the relevant provisions, as I did, in less than a minute. Whoever authored the correction likely didn’t read the statute, either. If he did, the correction itself was intentionally deceptive.

The quality of the reporting on this issue continues to be shockingly bad.


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