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 yesterday.

A government attorney acknowledged this during a 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.

At the hearing, U.S. District Judge Richard Leon asked if a detention would be illegal if it were based solely on evidence gathered by torture, because "torture is illegal. We all know that."

Principal Deputy Associate Attorney General Brian Boyle replied that if the military's combatant status review tribunals (or CSRTs) "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 if there were any restrictions on using evidence produced by torture.

Boyle replied the United States would never 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.

Attorneys for the prisoners argued that 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 detainees "have no constitutional rights enforceable in this court."

Evidence based on torture is not admissible in U.S. courts.

"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 Heymann 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 if U.S. courts could review detentions based on evidence from torture conducted by U.S. personnel.

Boyle said torture was against U.S. 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 U.S. soldiers there had been disciplined for misconduct, including a female interrogator who removed her blouse during questioning.

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