One of the ongoing mantras of the left during the Bush torture years was that, aside from the fact that torture produces little in the way of reliable intelligence, torturing Al Qaeda suspects might cause a future court to throw out the cases against them.
There is one wonderful thing and one frightening thing about Eric Holder’s announcement of civilian trials for the main Qaeda suspects at Guantanamo: this development marks the close of the Bush doctrine which argued that terror suspects should be tried before military tribunals with truncated rights. Bush’s claim was a betrayal of American constitutional values. Largely ending the practice, means we can turn our jurisprudence back to a more normative mode. Terror is no longer a war and no longer a matter solely for military consideration. Terror is no longer an existential threat. Instead, it is a criminal matter, a very serious one, but not one that threatens the Republic with extinction.
This is a repudiation nine years in the making and it couldn’t come a moment too soon. Many of us have been concerned by the Obama administration’s overly sympathetic approach to some remnants of Bush era thinking when it comes to constitutional, human rights and terror matters. This new tack will send the pendulum back in a direction that makes us more comfortable.
Mr. Mohammed’s initial defiance toward his captors set off an interrogation plan that would turn him into the central figure in the roiling debate over the C.I.A’s interrogation methods. He was subjected 183 times to the near-drowning technique called waterboarding, treatment that Attorney General Eric H. Holder Jr. has called torture.
If we tortured Mohammed and torture is illegal and unconstitutional, then do we lose the right to try him for his crimes? Might he go free simply because we betrayed our own constitutional values? And if the courts somehow figure out a way to finesse this issue and find that his rights (however those might be defined) were NOT infringed, then aren’t we still betraying our values? This would certainly not be a betrayal on the magnitude of Bush’s since it would be motivated by the desire to prosecute Mohammed in a civilian and constitutionally protected setting. But how do we get around the fact that whatever the motivation for torturing him, that it was unconscionable and more importantly for the court system, unconstitutional?
No one in this country wants Khalil Mohammed to go free. But how do you try him while acknowledging the injustices that were committed against him?