A detainee in Guantánamo Bay. (Photo: Brennan Linsley/Associated Press)Susan Crawford, the senior Pentagon official who dismissed charges against Mohammed al-Qahtani, a Guantánamo detainee, said in a published report on Wednesday that she had concluded that he had been tortured by interrogators. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution, Ms. Crawford told The Washington Post. We asked these experts — most of whom were in our previous debate on the legal challenges of closing Guantánamo — how this admission of torture might affect that closure and the prosecution of other detainees.
- David Cole, professor at Georgetown University Law Center
- Andrew McCarthy, legal affairs editor at National Review
- Diane Marie Amann, law professor at University of California, Davis
- Deborah Colson, Human Rights First
- Matthew Waxman, professor at Columbia Law School
Identify the Torturers
David Cole is a professor at Georgetown University Law Center, and the author, most recently, of “Justice At War: The Men and Ideas That Shaped America’s ‘War on Terror,’” and the essay “Closing Guantanamo,” published in Boston Review.
Susan Crawford’s admission that Mohammed al-Qahtani was tortured, and that as a result she had to drop the military’s prosecution of a man thought to the 20th hijacker in the Sept. 11 attacks illustrates just how costly the Bush administration’s short-sighted and immoral policies of coercive interrogation have been.
More than seven years later, it is not clear those practices have stopped any particular attack, but the Bush administration has yet to obtain a conviction against any of those behind the terrorist attacks.
“It is not enough to drop criminal charges against the torture victims.”
Moreover, many of the Bush administration’s worst distortions of law and morality were driven by the perceived need to coerce suspects into talking, and then cover up for that original sin. This led the administration to claim that the Geneva Conventions did not protect Al Qaeda detainees, to establish extraordinary rendition, to reinterpret the federal anti-torture statute to permit torture, and to create military trial procedures that either permitted reliance on coerced testimony, or would hide from the public the fact that torture occurred.
Now that the military official in charge of the tribunals has admitted that Mr. Qahtani was tortured, the question is what to do about it. It should not change the proper resolution of how to deal with Guantánamo detainees, which I discussed in this forum earlier. We still need to separate out those who can be prosecuted, those who can be released, and those who can be detained as fighters for the enemy in a specific armed conflict.
It is not enough to drop criminal charges against the torture victims, as Ms. Crawford did. Indeed, if wrongdoers can be prosecuted without reliance on coerced evidence, they should be. Rather, we must hold the torturers accountable. To date, not a single high-level military or administration official has been deemed responsible for the torture policy – even though it was specifically authorized by Donald Rumsfeld, Dick Cheney, and many others in the highest levels of the Bush Cabinet and executive branch.
The Convention Against Torture not only prohibits torture under all circumstances, but obligates signatory nations – including the United States – to refer cases of torture for investigation for potential prosecution. Criminal prosecution of the top wrongdoers seems highly unlikely at this point, but the latest admission calls for, at a minimum, appointment of an independent counsel or the convening of a commission to fully investigate the facts and identify those responsible for the crimes that can no longer be denied.
Intelligence vs. Evidence
Andrew McCarthy, a former federal prosecutor and author of “Willful Blindness: Memoir of the Jihad,” is legal affairs editor at National Review.
As someone who has supported the military commission system, I must concede that it has performed abysmally, and Wednesday’s news reflects more of the same.
A short recap of its failings: The judge in the first military commission trial incorrectly instructed a jury on the definition of a “war crime” (a concept one would have thought rather basic to a “war crime” trial). The same judge gave the defendant — who had been a confidant and bodyguard of Osama bin Laden himself — a get-out-of-jail-free card. (I’ve been critical of various aspects of using the criminal justice system to counter terrorism, but one thing cannot be denied: terrorists convicted in our courts have gotten appropriately severe sentences — decades or more in prison.) Finally, a general in the appointing authority (the body that oversees the commission process) suggested that statements derived from waterboarding could be used as evidence.
“Isolation and temperature variations of the type we are talking about here are not torture.”
On that last score, even those of us who have argued that there is a place for enhanced interrogation techniques have insisted that those techniques should be limited to intelligence gathering in dire threat circumstances; they are not for gathering trial evidence. You can call a proceeding in which coerced confessions are used many things; one thing you can’t call it is a “trial.” Using coerced statements is a corruption of our entire understanding of what a trial is.
Ms. Crawford’s conclusion is another instance of the military getting it wrong. Isolation and temperature variations of the type we are talking about here are not torture. To contend otherwise is to trivialize something that is truly heinous. It may be politically correct, but it is wrong. American law has always maintained a bright line between the egregious pain and suffering caused by actual torture and other forms of abusive conduct. Ms. Crawford’s suggestion that abusive conduct that has a “medical impact” meets the “legal definition of torture” is preposterous.
What impact will it have on cases? Exactly none. In the first commission case, a judge ruled some confession evidence could not be admitted at trial because it was adduced by coercion. That is the standard: “Was the declarant’s will overborne?” Not, “Was the declarant tortured?” Ms. Crawford’s assessment that “torture” occurred is not proof that it did, nor should any defendant be required to demonstrate that he was tortured in order to have confession evidence suppressed.
Confirming What Many Assumed
Diane Marie Amann is a professor of law and director of the California International Law Center at University of California, Davis. In December she observed Guantánamo military commissions proceedings on behalf of the National Institute of Military Justice.
Last month, I was in the gallery of the Guantánamo courtroom built for the trial of the 9/11 case. I saw six defense tables, but there were only five defendants. There had been no official explanation for the absence — until now. Susan Crawford’s conclusion that Mr. Qahtani, the sixth man, was tortured — confirming what anyone following military commission proceedings already assumed — raises anew questions about what effect illegal interrogations will have on this and other post-9/11 cases.
“Ms. Crawford’s correct decision not to go forward with charges tainted by torture is itself an accounting.”
Many are calling for those who committed, ordered, or enabled torture or cruel, inhuman and degrading treatment to be held to account. Those calls tend to overlook that accountability already is playing a role. Ms. Crawford’s correct decision not to go forward with charges tainted by torture is itself an accounting.
It is an admission by a top law enforcement officer that U.S. authorities violated law the United States is obliged to obey. Their lawlessness has created a risk that dangerous persons, who might have been subject to conviction if proper evidence-gathering procedures had been followed, will have to be released. A very first step toward accountability would be to demand that those responsible admit this most basic failure to protect.
Guantánamo By Another Name
Deborah Colson is the acting director of the Law & Security Program at Human Rights First.
Susan Crawford, who declined to refer Mohammed al-Qahtani’s case for prosecution on grounds of torture, says she did so despite her certainty that Mr. Qahtani is “a muscle hijacker” who “would’ve been on one of those planes had he gained access to the country in 2001.” Yet because his admissions were made as a result of torture, her conclusions are not necessarily based on reliable evidence. That is why she refused to refer his case for prosecution.
Nonetheless, her statements will undoubtedly be held up by a group of scholars who speculate there are dangerous people — in Guantánamo and around the world — who cannot be prosecuted, but pose a risk to our national security and must be detained.
Proposals for a new “national security court,” with limited due process protections, should be soundly rejected.
Many of these scholars say they support closing Guantánamo. At the same time, however, they advocate the creation of a new “national security court” — a specialized tribunal that would provide fewer due process protections than those guaranteed in ordinary criminal courts and might also be empowered to detain “dangerous” suspects, potentially indefinitely, without criminal charge.
Proposals for this new system must be rejected. The federal criminal courts are fully capable of handling complex terrorism cases without compromising national security or sacrificing standards of fairness and due process. In almost seven years, only two military commission trials have been conducted. During that same period, more than 100 international terrorism cases have been prosecuted in the federal courts.
Our procedural safeguards and evidentiary standards comprise the bedrock of American justice. A decision to jettison them, even for a small number of suspects, will undermine our system as a whole and perpetuate the damage to America’s reputation for fairness.
Moreover, the disarray that has plagued the military commission system — with abundant litigation and dissent within the military command structure — would be replicated in another separate, and inferior, system.
Just as importantly, a national security court is not smart counterterrorism policy. The Bush administration’s attempt to insulate the detention, interrogation and trial of terrorism suspects at Guantánamo from the Constitution has only impaired cooperation with our allies and fueled terrorism recruitment. Creating a state-side replica of the Guantánamo legal regime would do the same.
Military Commissions Can Show Independence
Matthew Waxman is Associate Professor at Columbia Law School, Adjunct Senior Fellow at the Council on Foreign Relations, and member of the Hoover Institution Task Force on National Security and Law. He previously held senior positions at the U.S. State Department, Defense Department and National Security Council.
Ms. Crawford’s conclusions will likely hasten the demise of military commissions, but they also illustrate dilemmas of closing Guantánamo.
The fact that the military commissions authorities are themselves throwing out high profile cases based on past interrogation practices shows, contrary to some expectations, an independence from political influence. Several times now, the military commissions administrators, prosecutors or judges have rejected Bush Administration legal claims or efforts.
Still, the latest news will reinforce widely held perceptions that military commissions, and especially their special evidentiary and secrecy rules, were designed to hide illegal government practices. More broadly, Ms. Crawford’s conclusion will also reinforce perceptions that Guantánamo and Bush administration legal approaches were devised primarily to keep detainees beyond the reach of law.
While these conclusions of torture will strengthen President-elect Obama’s conviction that Guantánamo must be closed, they won’t make it any easier. The same interrogation practices that infect this military commission case would undermine federal prosecution as well. The new administration then has no good options for handling this and any similar cases, especially if it hopes to close Guantánamo quickly.
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