The Los Angeles Times is reporting today on the FBI’s efforts to ensure that sufficient evidence, which is neither too controversial nor inadmissible, is available for upcoming war crime tribunals involving accused Al Qaeda leaders. With the recent publicity over the treatment of such war criminals and accusations of improper treatment by the CIA, bordering on torture, the FBI and the United States government want to ensure that the trials are solely about the persons on trial, not the United States agencies that collected evidence.
The FBI is reconstructing cases due to fears that much of the collected evidence will not be admissible as many of the prisoners on trial had be held incommunicado overseas, allowing the CIA to use coercive means to collect evidence. Much, if not all, of this evidence would not be admissible in a United States court of law, and it is thought that the military commissions will take a similar stance.
Efforts to collect additional evidence began after legal rulings against an accused Al Qaeda leader indicated that other suspected members would be provided with a forum for trial where evidence would be presented. According to the article, “[t]he FBI's efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the U.S. military detention center at Guantanamo Bay is closed.” If any of these situations would arise, detainees would be released, transferred to military custody elsewhere, or tried in U.S. federal courts where sufficient evidence would be required to charge them with terrorism. If the U.S. attempts to try these individuals in federal court for terrorism, any evidence obtained by coercion would be disallowed.
As presented as part of a previous post, experts have stated that torture or coercion provide reliable information. This is evidenced by the U.S. court’s refusal to allow evidence obtained by coercion to be presented at trial. Due to the CIA’s use of such methods, the FBI is now attempting, and has been for approximately the past two years, to rectify this issue and collect evidence that will be deemed reliable and therefore admissible. After the mistreatment of these detainees to obtain evidence to prove their guilt, it is likely that the evidence obtained will not be usable and the FBI will most likely have a difficult time now reconstructing the cases and obtaining admissible reliable evidence. As such, it now appears that the methods used not only harmed the prisoners but may also reduce the chances of the U.S. obtaining convictions for terrorism against these persons.