While Washington was preoccupied last week with expanding the executive branch's warrantless surveillance powers, Jane Mayer's latest article (featured in the Aug. 13 issue of The New Yorker) offered a chilling reminder of how the current administration has exercised its intelligence-gathering powers so far.
Members of Congress who will take up such questions again this fall would be wise to add Mayer's piece to their summer reading list. For among the article’s many disturbing descriptions of the treatment of detainees held in secret CIA prisons since 2002 lay this news: The Pakistani man (a man Mayer describes as a “terrorist who had a history of staging kidnappings”) convicted of the brutal slaying of Wall Street Journal reporter Daniel Pearl has new grounds for appeal. The grounds? According to recent statements by U.S. officials, another high-level terrorist, Khalid Sheikh Mohammed (KSM), had himself confessed to the Pearl killing under interrogation at one of the CIA prisons, where he was held in secret and reportedly tortured for more than two years. The Pearl conviction is now in question.
Never mind that there appears to be no evidence to corroborate KSM’s confession of beheading Pearl, or that the players closest to the Pearl murder, including the lead U.S. investigator and involved CIA officials, reject the idea that KSM played a role. Never mind, too, that the U.S. Intelligence Science Board recently concluded that no study has ever found that torture or coercion produces reliable information. And never mind that the “simulated” drowning to which KSM was apparently subjected can cause devastating short- and long-term effects, including neurological damage, respiratory panic attacks, and a host of other physical and psychological impairments, according to a recent report by Physicians for Human Rights and Human Rights First.
What this latest turn makes clear is how the U.S. decision five years ago to torture detainees has infected a generation of terrorism cases where it might have once been possible to do justice but might no longer be. These cases are changing what it means for justice to be done.
The U.S. Constitution (along with numerous provisions of international law) has prohibited the introduction of evidence obtained by coercion since the nation’s founding. As the Supreme Court explained in the 1944 case Ashcraft v. Tennessee, some official abuse is “so inherently coercive that its very existence is irreconcilable with the possession of mental freedom” sufficient to make meaningful statements of fact. Indeed, coercion to force a “confession” was thought inconsistent with the very idea of republican government. As the Court put it, “There have been, and are now, certain foreign nations with ... governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture.” But “[s]o long as the Constitution remains the basic law of our Republic,” the Court promised, “America will not have that kind of government.”
Yet with the torture of men like KSM a fait accompli, the Bush administration has responded to the ongoing imperative of prosecuting criminal acts by pursuing exceptions that are gradually swallowing the rule. Take the case of Binyam Mohamed, an Ethiopian national and long-term British resident, currently facing trial of some sort (pending the outcome of litigation over the legality of U.S. military commissions) at the U.S. Naval Base at Guantanamo Bay. According to Mohamed’s attorneys, he was brutally tortured over a period of nearly two years at a series of facilities in Pakistan, Morocco, and Afghanistan, where he was questioned by American agents, and falsely confessed to being part of a terrorist conspiracy.
It was in large part the prospect of prosecutors needing such statements as evidence to secure convictions of men like Mohamed that led Congress last year to allow the use of certain evidence obtained by coercion in military commission proceedings. (The separate Guantanamo “Combatant Status Review Tribunals,” set up to establish whether or not a detainee should be classified an “enemy combatant,” have from the outset expressly allowed, and apparently considered, evidence obtained by torture and cruelty.)
The specialized military commissions are far from the only venue to witness the new tortured-evidence exception to the centuries-old rule. Criminal terrorism prosecutions in the United States and Europe have seen the admission of statements gleaned from both KSM and Ramzi bin al Shibh, another high-level terrorist detainee reported to have been tortured in custody. Indeed, U.S. prosecutors introduced summaries of statements made by KSM and bin al Shibh in the federal criminal trial of Zacarias Moussaoui, who was eventually successfully prosecuted for his participation in planning the 2001 terrorist attacks on the United States.
Along the way, the U.S. Court of Appeals for the Fourth Circuit ruled that government-provided summaries of statements these men made while in secret custody should be assumed reliable enough to be used as evidence in federal court. Put differently, the court held that it was not only fine to ignore widespread accounts that the witnesses had been tortured, but it was also necessary to assume that any statements made under torture were reliable. That decision remains on the books today.
It is of course true that criminal prosecution alone is not a sufficient response to the threat of terrorism. I know no one who argues that it is. But in those cases where criminal prosecution is possible, it remains one of the most powerful tools we have for securing the long-term detention of individual terrorists and the meaningful punishment of terrorist acts. This power comes not just from raw force, but from the basic respect the idea of American criminal justice is afforded here and around the world. The prospect that this justice system would consider crediting statements made under torture and cruel treatment -- when anyone would say anything to make it stop -- destroys this respect.
Nearly four centuries since the English abolished the Star Chamber, notorious for welcoming evidence obtained by “the rack and screw,” U.S. actions are pushing law back to those times. Whether statements made under coercion are ultimately used to exonerate the guilty (as many fear in the case of Pearl’s killer) or convict the innocent (as we hope won’t happen to those at Guantanamo Bay), there is little hope of doing justice under the law while allowing the illegality of torture to infect case after case.