7 thoughts on “Will Torture Taint Al Qaeda Prosecutions? – Tikun Olam תיקון עולם إصلاح العالم
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  1. But how do you try him while acknowledging the injustices that were committed against him?

    The classic remedy for prosecutorial misconduct is to throw out evidence that was gathered illegally, isn’t it? That would certainly include testimonies and confessions obtained under torture.
    But with the level of deference still afforded to the executive branch by the courts I’m less than confident.
    Note the Second Circuit Court of Appeals’ recent decision in Arar v. Ashcroft (http://tinyurl.com/yzqd3sj), marking even the most outrageous behaviour by the govt as matters of foreign policy in which the courts have no business to interfere.
    (Yes, the document is long and legalese, but fascinating in an appalling way, like, say, a train wreck is fascinating.)

    I don’t quite agree that civilian trials for a handful of detainees are a good thing in the context in which they’ve been announced. The crux is that only those will get a “fair” trial who the govt is certain in advance to get convicted. Other cases, where the evidence admissible in civilian courts doesn’t seem sufficient, are to be tried before military commissions with lesser standards of due process, and those who can’t be tried even there will be held indefinitely anyway, without charges (http://www.nytimes.com/2009/09/24/us/politics/24detain.html?_r=1&hp).

    I’m fully with Glenn Greenwald on this one:

    A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.

    1. I agree with Greenwald, too. It appears that the government will trot out the big cases, the ones for which it claims it has evidence, and those fortunate ones will finally get a trial, but the others who have been held in Gitmo for years will still languish in custody, a dark tunnel with no light.

      More than one Gitmo detainee has been freed due to evidence against them being ruled admissible because it had been obtained by torture. This is adherence to the rule of law, which Bush and Cheney would not do. The evidence against a person obtained by torture should not be admissible. It is so tainted as to be anathema to any civilized court. People say anything when they are being brutalized, just to make the torture stop.

  2. this development marks the close of the Bush doctrine which argued that terror suspects should be tried before military tribunals with truncated rights.

    Not really. Part of the group is still being tried in military tribunals – it’s only Mohammed and four other guys that are going to be tried in a civilian court.

    I suspect, as you probably do, that they’re doing so because trying him in a military tribunal has become legally impossible at this point.

    Terror is no longer a war and no longer a matter solely for military consideration.

    In this case, that’s true – if convicted, they were instrumental in committing an act of terrorism on US soil. It’s trickier, though, with many of the people they grab in Afghanistan, since they were fighting in conflict with US troops on an active battlefield.

    1. Let’s not forget, too, that while Obama is making a big P.R. matter out of closing Guantanamo, they are quietly upsizing Bagram, which by all accounts has been no less a hell hole than Guantanamo. Let us not allow hope to blind us to the fact that what we are seeing here is nothing more than a shell game.

        1. Very true. In fact, it appears to me that most of the changes are showcase changes, leaving the real stuff as filthy and putrid as ever. Make a show of closing Guantanamo, but enlarge Bagram and other hell holes, keep the secret “black sites” open, don’t end rendition, etc., etc.

          “Change” you can gnash your teeth at.

          1. I am not surprised by it, but I am angered. And he’s not fooling the Muslim world, either. The hypocrisies of the Obama administration will trigger blowback, just as Bush’s “policies” did. US human rights record is abysmal, hypocritical and outrageous, whether we’re talking about Gitmo, Bagram, Abu Ghraib, or US support of Israel, Saudi Arabia, Morocco, Egypt and other countries where torture is commonplace.

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