Friday, November 5, 2010

What's the Matter with Torture?

October 7, 2010 The New Yorker
Who Needs Torture? Posted by Amy Davidson
Some of the responses to the exclusion of a witness from the trial of Ahmed Ghailani—let’s take Liz Cheney’s, for an easy, blatant example—seem to assume that if torture plus due process equals difficulty getting a conviction, then there is a problem with due process. No: there is a problem with torture. There are many problems with it, actually (moral, epistemological, political). But we are all weak and the idea of beating up or drowning a person can be tempting, apparently. That is why the penalties for torture have to be very high. One practical reason not to torture people is that it messes up prosecutions.

Liz Cheney wrote to TPM that

By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and Attorney General Holder are jeopardizing the prosecution of a terrorist who killed 224 people at U.S. Embassies in Kenya and Tanzania…. If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today.

Really, we received proof that the Bush Administration’s use of torture was irresponsible and reckless. What is Cheney actually saying about military commissions? If the exclusion of evidence gained by torture is “proof” of the need for military commissions, does that mean that they are necessary because they allow us to torture? All the more reason to avoid them. (And there are some limits even there: Charles Stimson, a former Bush Administration official, told the Washington Post that “It’s not clear the outcome would have been any different in a commission.”) What is so desirable about torture that we would create contorted legal structures—and throw away ones that have served us well—as tools for torturing?

Let’s even assume, for the sake of argument, that the information you get from torture is sometimes accurate. When someone will say anything to make torture stop, how do we know which things he says are good or not? More torture?

The defense, by the way, does not just get to cry torture and get things thrown out. From Judge Lewis Kaplan’s order:

The Court has had the benefit of extensive evidentiary submissions, a three-day hearing at which Abebe and representatives of the Federal Bureau of Investigation, the CIA, the Tanzanian National Police testified, legal briefs, and skilled argument. On the basis of that record—including importantly its assessment of the credibility of the only witnesses called to testify who actually were present when Abebe was persuaded to confess his role, to implicate Ghailani, and to cooperate with authorities—it now finds and concludes that the government has failed to prove that Abebe’s testimony is sufficiently attenuated from Ghailani’s coerced statements to permit its receipt in evidence.

The issue was attenuation because the prosecution did not even contest that Ghailani had been “coerced.” (One also wonders how Abebe, who was expected to testify that he had sold TNT to Ghailani, was “persuaded.”) More from Kaplan:

The Court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.

When you lose a game because of fairly called penalties you don’t blame the penalties; you blame the fouls. And it’s not like this game is over: Ghailani is still on trial, and one would think that the government has some other evidence against him. It should: it won an indictment against him in 1998, and chased him for six years before even learning Abebe’s name. If we’d caught him in the beginning, without the benefit of secret prisons or Guantánamo, we still could have dealt with him, in America and on American terms. He has been in New York for several months now, and the city is doing all right.

It is also interesting to contrast the discreet exclusion of a single witness because of torture—while the prosecution itself proceeds—with the way both the Bush and Obama Administrations have been able to get entire cases thrown out by invoking the state-secrets privilege. Courts do know how to act surgically, if they are allowed to.

So why does it bother Liz Cheney so much that an accused murderer would be tried for his crimes in a real, solid court? Is it simply because it belies the need for fake courts and indefinite detention? (That setup has yielded hardly any completed prosecutions.) Or is the idea that we have to use military commissions so that no one will know what we did in the years after September 11th? Building a system that, going forward, will undermine the rule of law is no way to deal with the past. Courts can do that, too.

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