Obama Task Force Recommends Treating Well Those Prisoners We'll Try in Court, But Not So Much Those We'll Just Hold Illegally

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Additionally, the Intelligence Science Board recommended that ahead of the deployment of the interrogation teams, senior administration officials should decide whether or not the substance of the interrogation ought to be used as evidence for a criminal prosecution. “There would have to be an early decision, presumably made in Washington by people with a high level of responsibility, as to whether to take whatever steps necessary to ensure any statements could be used at a trial, or to go ahead and get as much information as possible, without worrying about convicting on that basis,” Heymann said. The decision would impact whether to immediately provide a detainee with a lawyer in preparation of seeking a conviction or whether to proceed with an interrogation in order to collect intelligence about a broad picture of a terrorist organization or specific plot.

“That doesn’t mean we torture them,” Heymann said. “It means to forget about offering a lawyer, if that’s required, even though that means we would not use any statement at trial.” Acquiring information intended for use when trying a detainee would have to meet standards for admissibility in criminal court. “If you want to admit it in American court, it’s going to have to be noncoercive and perhaps comply with the Miranda rules,” Heymann said.