The news services report the latest effort by legal officials of the U.S. Government to get Americans to agree that the use of torture by the military is no big deal:

WASHINGTON —U.S. military panels reviewing the detention of foreigners as enemy combatants are allowed to use evidence gained by torture in deciding whether to keep them imprisoned at Guantanamo Bay, Cuba, the government conceded in court Thursday. The acknowledgment by Principal Deputy Associate Attorney General Brian Boyle came during a U.S. District Court hearing on lawsuits brought by some of the 550 foreigners imprisoned at the U.S. naval base in Cuba. The lawsuits challenge their detention without charges for up to three years so far.

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

U.S. District Judge Richard Leon asked whether a detention would be illegal if it were based solely on evidence gathered by torture, 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 prohibits them from relying on it.”

I look forward to some analysis of this exchange by a good lawyer. (A good lawyer with some sense about what issues are worth their time, I mean.) It seems to me that the government wants to let military tribunals do whatever they like. Boyle’s claim seems to be that in balancing the reliability of any piece of evidence against its “questionable provenance” (i.e., whether it was beaten out of a detainee), the status-review tribunal should not only lean towards reliability but also get to pick and choose how questionable a “provenance” is too questionable.

Torture is a moral problem first and foremost, and Jim Henley’s argument for why the U.S. shouldn’t be pursuing it ("Because we’re the fucking United States of America") is the right one.[1] If you’re thinking of bringing up ticking nuclear bomb cases in the comments, go have a read of Belle’s earlier post about them first. Such cases are useful for thinking about limits, but they’re the wrong way to focus the debate in this case, because they have nothing to say about the institutionalization torture within the machinery of the state. That process is more a matter of political and organizational sociology: the tendency of bureaucrats, for example, to want to arbitrarily extend their powers and escape systems designed to oversee them. Its consequences are, at least to begin with, something for the strategic foreign-policy crowd to deal with. Even if moral arguments mean nothing to you (i.e., you are a sociopath) there is still an overwhelming realist case for not routinizing torture because of the risks it exposes your own people to down the road.

It still amazes me, by the way, that people who don’t trust the government to calculate assess their taxes properly don’t seem to mind giving it the power to arbitrarily detain and torture them.

fn1. As Arthur Silber points out, this is a special case of the more general anti-torture argument that goes “Because we’re human beings”.