Wednesday, January 14, 2009

Lead military commissions judge speaks out on torture

Bob Woodward reports on an interview with Susan Crawford, the "convening authority" of the military commissions who has final review within that system over the commissions and their decisions, in Detainee Tortured, Says U.S. Official Washington Post 01/14/09. The importance of the article in my mind is it lays out in a way rarely if ever seen in such a prominent report from the front page of the Post, the straightforward problem that torture presents for any judicial system that can even pretend to call itself a system of "justice".


Woodward has long since become a celebrity journalist who stays safely within the Beltway Village conventional wisdom. So that may be a sign that the Village has decided that acknowledging the rule of law as a necessity, albeit a troubling one, is now becoming part of Village conventional wisdom.

She gives some details about the torture of Mohammed al-Qahtani, accused of being the "20th hijacker" of 9/11 who didn't make it into the US on time. This was after another defendant who had been called the 20th hijacker for months by the government and the press turned out not to be. Crawford dismissed the case against Qahtani because he had been tortured.


Former Bush court historian Woodward spins the significance of his story this way:

Crawford, a retired judge who served as general counsel for the Army during the Reagan administration and as Pentagon inspector general when Dick Cheney was secretary of defense, is the first senior Bush administration official responsible for reviewing practices at Guantanamo to publicly state that a detainee was tortured. [my emphasis]
Yeah, that's nice, Bob. Of cours, the fact is that the US had a systematic policy of torturing "war on terror" detainees has been known to pretty much everybody in the world since the Abu Ghuraib photos became public in 2004. But it's still interesting that a key official of this administration is being so explicit in this.

I'm not quite ready yet to celebrate this as an example of sterling judicial integrity, though. Phrases like the one saying she was "Pentagon inspector general when Dick Cheney was secretary of defense" always make me do a double-take. After all, it is the legal duty of all officials and all citizens to refuse to participate in the crime of torture, even as a judicial enabler after the fact. In the context, it may well have taken some real personal courage to do what was straightforwardly the legal thing to do.

I'll be very curious to see what attorneys like Scott Horton and Glenn Greenwald have to say about this story. Any judge would normally be expected to not allow evidence to be used that was obtained illegally or as "fruit of the poisoned tree", i.e., evidence that would not otherwise have been obtained if the illegal evidence-gathering had not occurred. But in Qahtani's case, she didn't allow the trial to go forward at all, if I'm understanding her comments correctly, which isn't necessarily the same as disallowing tainted evidence.

And Woodward reports she also had the following to say about the more general issue. Something that conspicuously echoes the pro-torture crowd's warning/threat that dangerous scary people could be let out of the gulag if Obama's and his crazy hippies do the right thing legally:

The Qahtani case underscores the challenges facing the incoming Obama administration as it seeks to close the controversial detention facility at Guantanamo Bay, Cuba, including the dilemmas posed by individuals considered too dangerous to release but whose legal status is uncertain. FBI "clean teams," which gather evidence without using information gained during controversial interrogations, have established that Qahtani intended to join the 2001 hijackers. Mohamed Atta, the plot's leader, who died steering American Airlines Flight 11 into the World Trade Center, went to the Orlando airport to meet Qahtani on Aug. 4, 2001, but the young Saudi was denied entry by a suspicious immigration inspector.

"There's no doubt in my mind he would've been on one of those planes had he gained access to the country in August 2001," Crawford said of Qahtani, who remains detained at Guantanamo. "He's a muscle hijacker. ... He's a very dangerous man. What do you do with him now if you don't charge him and try him? I would be hesitant to say, 'Let him go.' "

That, she said, is a decision that President-elect Barack Obama will have to make. Obama repeated Sunday that he intends to close the Guantanamo center but acknowledged the challenges involved. "It is more difficult than I think a lot of people realize," Obama said on ABC's "This Week," "and we are going to get it done, but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom may be very dangerous, who have not been put on trial or have not gone through some adjudication. And some of the evidence against them may be tainted, even though it's true." [my emphasis]
This doesn't quite scan right for me.

If the evidence all came from torture, how is it that she has "no doubt in my mind" about his actual guilt? Woodwood writes, "FBI 'clean teams,' which gather evidence without using information gained during controversial [sic] interrogations, have established that Qahtani intended to join the 2001 hijackers." But if there's convincing evidence not derived from tortured confessions, why wouldn't she allow a commissions trial based on that move forward? She says she's "hesitant" to say, "Let him go". But if there is no usable evidence of a crime committed and he's not a prisoner-of-war, due process of law requires that they "let him go".

Whatever Crawford and Woodward may be thinking in doing this story, it does put the Cheney argument out there in a prominent story and in raw form. Cheney still maintains that nothing they've done can be defined as "torture". But he also copped to supporting and being part of the decision-making on the use of the drowning torture ("waterboarding"), which has been recognized for centuries as a form of torture and which is considered torture in legal definitions and precedents that have been applied by the United States.

Crawford puts the argument even more starkly: Sure, this guy was tortured and can't be legally tried. But I know he's dangerous and if he's let go and does something bad, it will be Obama's fault. Although, oddly, "Crawford declined to say whether she considers waterboarding, a technique that simulates drowning, to be torture." Uh, no, Bob. It doesn't "simulate" drowning, it is drowning. That's why for centuries it has been known for centuries as "the drowning torture".

According to Woodward's indirect quotation, Crawford explicitly defined it as Obama's problem: "That, she said, is a decision that President-elect Barack Obama will have to make."

And, in case we missed the point, Woodward writes:

The Qahtani case underscores the challenges facing the incoming Obama administration as it seeks to close the controversial detention facility at Guantanamo Bay, Cuba, including the dilemmas posed by individuals considered too dangerous to release but whose legal status is uncertain. [my emphasis]
But I don't want to blame Crawford for the Village framework into which Woodward puts her story. Even though the current military commissions act contains language allowing the use of "coercive" interrogation while once against technically banning torture, thereby potentially creating a very large gray area for interpretation, Woodward is explicit about the use of evidence produced by torture even under the vaguer term of coercion:

Crawford said she believes that coerced testimony should not be allowed. "You don't allow it in a regular court," said Crawford, who served as a judge of the United States Court of Appeals for the Armed Forces from 1991 to 2006. ...

In May 2008, Crawford ordered the war-crimes charges against Qahtani dropped but did not state publicly that the harsh interrogations were the reason. "It did shock me," Crawford said. "I was upset by it. I was embarrassed by it. If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques? How can we complain? Where is our moral authority to complain? Well, we may have lost it."
Contrary to what our Republican torture supporters often argue or imply, international law on treatment of prisoners-of-war does not depend on reciprocal observance. But, in practice, what she says is important. When the sole superpower openly flauts the laws against torturing prisoners, it certainly doesn't help reinforce the observance of the law by other countries. What Crawford says there is true, but it's a matter of "moral authority" not of some reciprocal obligation. If a wartime enemy tortures American prisoners, the US has the legal right to object even if the US itself is breaking those same laws.

For more on this story, see Memeorandum.

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