Monday, March 16, 2009

LTG 01-17-09: Obama's response to torture

(Initially run in the Omaha CityWeekly in the week of 01-17-09)

As this issue of the CityWeekly hits the stands, the Obama administration has begun, and the George W. Bush administration has ended. But before we draw the curtain on Bush 43, there was a fascinating story that broke last week which deserve some attention. You’ll have to pardon me in advance if your Law-Talking Guy gets a little misty-eyed at the thought of not having George W. Bush to kick around any more.

Susan Crawford, a retired Federal judge and lifelong Republican, announced last week that she believe.

Why is this a big deal? Well, first of all, Mohamed al-Qahtani is the first active member of the Bush administration who has actually called the “enhanced interrogations” torture. And second, Crawford’s job is to decide who gets prosecuted in the military tribunal system. Crawford’s decision means that, whether or not al-Qahtani is guilty of the heinous crimes of which he is accused, he cannot be prosecuted. Why?

First of all, torture makes the prosecution of that prisoner in any kind of court almost impossible. Obama has made it pretty clear that Bush’s military commission tribunal isn’t long for this world, but it does seem like there will be some kind of special “national security court” apart from the standard Federal court.

Regardless of what is created, though, any prosecution requires some level of evidence to be produced against a defendant in order to win a conviction. The only evidence we’ve got against al-Qahtani is his confessions, and if we tortured him to get those confessions, then we can’t use them against him.

And it’s not because of some squishy-soft need to be nice to bad people. It’s because torture doesn’t work as an information-gathering tool. There is a broad consensus that when you torture someone, all you get is the answer that the person who is being tortured thinks you want to hear.

Look, if you did the things to me that you did to al-Qahtani, then I’m comfortably certain that I would admit to the assassination of Archduke Ferdinand and the start of World War I. Sure, I confessed, but it’s nothing that you could actually believe. Crawford talked about the things done to al-Qahtani, in combination, being life-threatening. The government had to hospitalize al-Qahtani because of their mistreatment of him. Twice.

And that’s really the tragedy of it all. I have no doubt that some of the people swept up by our government after 9/11 and detained at Guantanamo Bay are bad, dangerous people. And if our interrogation policy was run by adult professionals, rather than overgrown juveniles who watched one too many episodes of “24,” then perhaps we would be able to bring people like al-Qahtani to justice and uphold the very rule of law we claim to be defending.

Instead, we’re left with a mess. We’ve got people locked up with no real way to tell if they are actual bad guys or innocent victims. We’ve got people we suspect have done horrible things, but because of our criminally foolish torture policy, we can’t prosecute them.

And, by the way, when I say “criminally foolish,” I may not be speaking in metaphor. Torture is a war crime, and anyone who knowingly participated in or authorized torture could be charged with a crime under American law or under international law. The American government has prosecuted and jailed American soldiers in World War II for engaging in some of the exact same “enhanced interrogation” techniques authorized by Bush and executed by American soldiers in Guantanamo and other places.

Obama has been loathe to say whether his administration will open a criminal investigation about war crimes committed by the previous administration, but there are a number of prosecutors around the world who have already started that process. While I am not excited about the prospect of an international tribunal cleaning up America’s dirty laundry for us, I do think it is likely that some form of judge will ultimately be reviewing these questions.

Vice President Cheney said after 9/11 that we had to work on the “dark side” to keep the country safe. Ah, Mr. Cheney, you should have listened to what Jedi Master Yoda told a young Luke Skywalker in the swamps of Dagobah about the dark side.

“Once you start down the dark path, forever will it dominate your destiny. And forever will you answer to Congressional inquiries and look over your shoulder for indictments from international courts.”

Well, OK, that last part might be a little bit made up. But he would have said it if he was talking to Cheney, I’m sure.

No comments: