Edit: Looks like the answer is it depends and not a resounding no
http://www.nolo.com/legal-encyclopedia/evidence-obtained-thr...
Examples:
* prolonged solitary confinement: not legally torture
* fellow prisoner violence: not legally torture, no nexus
* prolonged pre-trial confinement: not really torture, but we may as well include it
* waterboarding/drowning: not legally torture? (Supreme Court declined to rule)
* stress positions: cannot show it took place
* parallel construction: cannot show / not aware
If they can find a judge who believes the iron maiden isn't torture while the anal pear is, then guess what... the government will use the iron maiden.
Even if they can't find such a pliable jurist, they'll have no problem getting a John Yoo to write an executive memo that justifies whatever they want to do to you, and let the courts sort it out later. There's no downside from their point of view.
The memos didn't provide de iure indemnity. There is no constitutional basis, in fact the proposition that a memo can supersede the Constitution is idiotic on its face.
The failure is the de facto doctrine of absolute executive immunity. It has two prongs: 1. "When the president does it, that means that it is not illegal." 2. When the perpetrator follows president's orders, also not illegal.
Nevertheless, since there is no legal basis, there is nothing preventing the next government from prosecuting them.
Yes, and that's what I meant by "let the courts sort it out later." The Constitution's not much help either way, being full of imprecise, hand-waving language and vague terms like "cruel and unusual." It was anticipated by the Constitution's authors that it would be of use only to a moral government.
Nevertheless, since there is no legal basis, there is nothing preventing the next government from prosecuting them.
I wonder if that's ever happened in the US? Does anyone know?
Enter parallel-constructed information as court-sanitized evidence.
