Obama’s Justice Department Struggles to Prosecute Guantanamo

Dr. Mark Finney
The Paw Print

The Washington Post reported on Tuesday that a civilian judge presiding over Ahmed Khalfan Ghailani’s terrorism trial in New York barred prosecutors from calling a witness who was named by Ghailani after being tortured (or “harsh interrogation techniques” as we have euphemistically come to know it) by U.S. officials at Guantanamo Bay.
This is the first civilian court to prosecute a Guantanamo Bay detainee and the Post’s story goes on to explain that prosecutors are concerned about their ability to pursue the case because the now barred witness was the “most important” witness they had.  Justifying his decision to bar the witness from testifying, Judge Kaplan’s ruling argued that he 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 when it is convenient, but when fear and danger beckon in a different direction.”
The issue at hand is that civilian courts do not allow testimony or evidence that is discovered via torture.  Prisoners are not allowed to be beaten for information, heck they’re even allowed to not incriminate themselves.  Things at Guantanamo were not as clear cut.
In 2002 and 2003 high level officials in the Bush administration debated and ultimately agreed that harsh interrogation techniques were appropriate for use on Guantanamo Bay detainees, as a part of the U.S. effort to fight the War on Terror.  Harsh interrogation techniques were applied in a number of cases.
While I have no standing (or the space) to argue about the effectiveness of torture, I will argue though that several things ARE achieved through the use of harsh interrogations.  For one, they undermine U.S. credibility abroad.  For all those who have proclaimed U.S. exceptionalism or that the United States is a “city upon the hill” to be admired and imitated, harsh interrogation turns this argument upon its head. Our democracy, our system of justice, our beliefs about equality come under question when harsh interrogation tactics are used – for no longer can we claim that we’re better than those who torture, that we value human life, or even that we adhere to the founding documents and international treaties that we’ve signed.
And, as Judge Kaplan’s brief states, torture undermines our ability to carry out justice.  Kaplan correctly cites the Unted States’ 8th Amendment to the Constitution which bars the use of torture as an example of cruel and unusual punishment.  Furthermore, study after study finds that torture is an ineffective way to produce reliable information (largely because in many cases people will say anything to prevent or stop torture from happening to them).  Our legal system has codified this finding with numerous precedent cases which found that information obtained via torture lack validity (i.e., it can’t be trusted).  In short, the enhanced interrogation techniques that were conducted on Ahmed Khalfan Ghailani are now undermining the government’s ability to prosecute him.
Nearly 10 years ago officials in the Bush administration decided upon a policy that they felt would be useful in the pursuit of the War on Terror.  One has to wonder whether they did it deliberately or not, but in effect the Bush administration enacted a sort of Catch-22.  One of their principle arguments in support of enhanced interrogation and military tribunals was that civilian courts were inadequate to prosecute terror suspects.  Now, as a result of this policy, that appears to be true.  Not, as they argued, because civilian courts were incapable of meting out appropriate justice; rather, because the use of torture and other inappropriate techniques in the pursuit of the war have hamstrung the work of our legitimate system of jurisprudence.

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