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.
But this is what’s frightening:
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?
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:
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.
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.
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.
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.
Obama also did not end the practice of extraordinary rendition.
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.
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.