WASHINGTON, 4 December 2004 — Evidence gained by torture can be used by the US military in deciding whether to imprison a foreigner indefinitely at Guantanamo Bay, Cuba, as an enemy combatant, the government concedes.

Statements produced under torture have been inadmissible in US courts for about 70 years. But the US military panels reviewing the detention of 550 foreigners as enemy combatants at the US naval base in Cuba are allowed to use such evidence, Principal Deputy Associate Attorney General Brian Boyle acknowledged at a US District Court hearing Thursday.

Some of the prisoners have filed lawsuits challenging their detention without charges for up to three years so far. At the hearing, Boyle urged District Judge Richard J. Leon to throw their cases out.

Attorneys for the prisoners argued that some were held solely on evidence gained by torture, which they said violated fundamental fairness and US due process standards. But Boyle argued in a similar hearing Wednesday that the detainees “have no constitutional rights enforceable in this court.”

Leon asked whether a detention based solely on evidence gathered by torture would be illegal, because “torture is illegal. We all know that.”

Boyle replied that if the military’s combatant status review tribunals “determine that evidence of questionable provenance were reliable, nothing in the due process clause (of the Constitution) prohibits them from relying on it.”

Leon asked whether there were any restrictions on using torture-induced evidence.

Boyle replied that the United States never would adopt a policy that would have barred it from acting on evidence that could have prevented the Sept. 11, 2001, terrorist attacks even if the data came from questionable practices like torture by a foreign power.

Several arguments underlie the US court ban on products of torture.

“About 70 years ago, the Supreme Court stopped the use of evidence produced by third-degree tactics largely on the theory that it was totally unreliable,” Harvard Law Professor Philip B. Heymann, a former deputy US attorney general, said in an interview. Subsequent high court rulings were based on revulsion at “the unfairness and brutality of it and later on the idea that confessions ought to be free and uncompelled.”

Leon asked whether US courts could review detentions based on evidence from torture conducted by US personnel.

Boyle said torture was against US policy and any allegations of it would be “forwarded through command channels for military discipline.” He added, “I don’t think anything remotely like torture has occurred at Guantanamo” but noted that some US soldiers there had been disciplined for misconduct.