The Legal Cost of Torture
One of the big problems with the Bush administration’s decision to break the law constantly in pursuit of counterterrorism is that once you’re doing a bunch of illegal stuff, it’s very hard to stop. For example, Muhammed al-Qahtani is someone who it seems like you’d like to prosecute for terrorism-related crimes but it seems we can’t since he was tortured, ruining the evidence:
The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”
“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.
This is one reason why veteran interrogators and criminal investigators always tended to be extremely skeptical of the enthusiasm for torture coming from the top of the command chain and some of the other government agencies — they have an understanding of the value of doing things the right way. Evidence obtained via torture is useless.
It’s also a reason why I have some doubts about the viability of a “let bygones be bygones” attitude toward Bush-era war crimes. We have here a legal determination that a captive in US custody was tortured. And if he was tortured, that means someone tortured him. And torture is a crime. And most likely, someone ordered the torture. And someone knew about the torture and didn’t do anything about it. And as we attempt to regularize the legal status of various other people being held by the United States similar findings will be relevant to future questions about who can and can’t be prosecuted and for what. To me, it doesn’t make any sense to say that we’re going to have determinations that people were illegally tortured and yet we’re just not going to do anything about it. It’d be one thing to pardon people for this kind of thing as part of some larger legal or investigative strategy. But to just leave it hanging? If Crawford thinks Qahtani can’t be prosecuted because he was tortured, then it stands to reason that there’s someone who can be prosecuted for the torturing.
32 Responses to “The Legal Cost of Torture”
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January 14th, 2009 at 9:54 am
But the people who support torture don’t care if the evidence is useless. They have no use for evidence- if you’re torturing someone, you’ll have no qualms about keeping him locked up without a trial as well. It’s all of a piece.
January 14th, 2009 at 9:58 am
For Obama to go forward with prosecutions, he needs to be convinced, and to be able to convince the judiciary, that the Bushies did things that were materially different from the typical abuses of authority and torture that the U.S. regularly engages in as part of its foreign relations. Otherwise, he (and all before and after him) would be opening himself up to prosecution when he leaves office.
January 14th, 2009 at 10:06 am
that the Bushies did things that were materially different from the typical abuses of authority and torture that the U.S. regularly engages in as part of its foreign relations
Well, if there was no “material difference,” then then the U.S. deserves to go the way of Carthage after the third Punic war.
Not that I want the U.S. to get what it deserves, mind you, as I and my family and friends love here.
January 14th, 2009 at 10:24 am
So, all this military tribunal kangaroo court nonsense was an attempt to get convictions unattainable in the real judicial system because of the taint of torture? Sweet.
January 14th, 2009 at 10:41 am
Let a series of congressional hearings suss out all of the incriminating evidence and make it public, naming the individuals responsible. Publish the names. Even if no prosecutions are sought here, those culprits will never again feel safe setting foot from US soil.
January 14th, 2009 at 11:04 am
It seems like there is a strong partisan political argument for prosecutions. Let them be done by a special counsel, but let them be done. Republicans will demand that their law breaking president be pardoned, but pardons are never popular so it will only hurt them. If Obama pardons these people or stops prosecutions from happening then he misses an opportunity and angers his base.
January 14th, 2009 at 11:23 am
We have here a legal determination that a captive in US custody was tortured. And if he was tortured, that means someone tortured him. And torture is a crime. And most likely, someone ordered the torture. And someone knew about the torture and didn’t do anything about it.
Exactly. When I read that Crawford said “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution, my first thought was she should certainly be referring the case of the torturers for prosecution. We know, after all, who interrogated Qahtani (or at the least Crawford does), and therefore she knows the identity of those who tortured him. As an attorney and an officer of the court it is not only her moral duty but also her legal one to refer their case for prosecution. She’s not allowed to close her eyes and claim she saw nothing.
January 14th, 2009 at 11:56 am
Our policy of torturing detainees has been extremely successful. Why? Because it enabled us to torture detainees. Torture is not a means to an end, no matter what’s its defenders may put forth to rationalize its use. Torture is an end in itself.
January 14th, 2009 at 12:14 pm
“It’d be one thing to pardon people for this kind of thing as part of some larger legal or investigative strategy. But to just leave it hanging?”
This is something I can get behind; little nervous about idea of prosecutions.
January 14th, 2009 at 12:44 pm
There is no need to look very far to see how worthless information obtained through torture is. Blago’s predecessor as governor of Illinois, the imprisoned George Ryan, did receive a lot of praise despite the corruption. Ryan cleared out Illinois’s death row – there were 167 prisoners awaiting execution. At least four of them were clearly innocent. They were convicted based on their confessions. Why did they confess – because they were tortured by the Chicago police in Area 2. The lead torturer was Jon Burge. According to the report by the special prosecutor, at least 192 individuals were tortured. Read all about it here –
http://www.chicagoreader.com/features/stories/burgereport/
January 14th, 2009 at 1:07 pm
And bear in mind that 24 or so people in U.S. custody died at the hands of their captors. It’s not just torture we need to be concerned with, but murder.
What a track record…
January 14th, 2009 at 1:26 pm
One thing has been bothering me about the prosecution idea, other than that it seems unlikely or that Obama would have to work with the CIA to get them to play ball while putting them under scrutiny they don’t like. It’s that it doesn’t seem fair to do it without prosecuting Bush, Cheney, Rumsfeld, Ashcroft, and Gonzales. If “I’m only following orders” isn’t a defense, at the very least the subordinate shouldn’t be singled out while the one giving the orders gets off.
But then those four are the hardest to prosecute, even if Obama were willing. They’re the most likely to plead they were making a political decision, the most likely to rally the base as defenders, and the most likely to consume every bit of attention being on trial in case one hoped to get anything else done. I’m not saying I wouldn’t relish it and that it isn’t justified, but can we pull it off, putting the head of state on trial for war crimes and murder? Maybe we just have to hope one of them sets foot in a civilized nation. The very conundrum is a sign of how far this nation sunk.
January 14th, 2009 at 2:46 pm
I’m an old Ex-paratrooper that did a few years in a couple of elite airborne outfits. I witnessed waterboarding, (actual torture) stress positions and their eletro shock fun and games to name a few, get out of hand under the guise of Excape and Evasion(now SERES training)and Jungle Warfare Training passed on to our troops leading up to Nam.
One of the jr officers that witnessed and believed in this this specialized psychotic “Troop Training”, went on to become a top general officer envolved with the production Iraq/Afgan fiasco among other things.
The old adage that “We reap what we sow” comes to mind.
I said so then and I say so now.
January 14th, 2009 at 6:37 pm
Safe prediction: Obama won’t do squat about this.
Not one damn thing.
JohnH is right. It simply isn’t possible in this country to prosecute the President of the US for war crimes. Not possible. You can get him impeached for lying under oath about a blowjob but that’s about it. After all, that’s sex, not torturing some Ay-Rab.
No one is going to be prosecuted by the Obama administation. No one. Obama does not have the nerve to even try.
January 14th, 2009 at 8:24 pm
Is there any statute of limitations on war crimes? If not, perhaps Barack can amuse himself later by toying with the fate of Messrs Bush and Cheney.
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