Tainted Fruit

How can al-Qaida’s 14 worst terrorists stand trial?

Torture and disappearances work. That was the essential message in an extraordinary speech by President George W. Bush on Sept. 6. In the speech, the president acknowledged for the first time the existence of secret detention centers administered by the CIA, admitted that detainees held there had been harshly interrogated, and argued that it was all worth it because the tactics had produced valuable intelligence that had “saved American lives.” Now, the president claimed, he was transferring 14 detainees from their “disappeared” states in these CIA “black sites” to Guantanamo Bay, so that they could be “brought to justice.”

It seems highly unlikely that these men—who include Khalid Sheikh Mohammed, the alleged mastermind of 9/11, as well as several other high-level al-Qaida leaders—can actually be brought to justice, precisely because of the way the CIA treated them. Here, as in so many of its other national security initiatives, the Bush strategy has backfired, leaving the government fatally hamstrung in holding real terrorists accountable. Just as in Iraq, the administration violated basic principles of the rule of law in the name of “preventing terrorism,” and we are all now paying the consequences.

No one looks forward to a trip to Guantanamo, the administration’s would-be law-free zone. But it may prove a relative oasis for its 14 latest arrivals. They have already been subject to an officially authorized, secret practice that literally “disappeared” them for years at a time, held them incommunicado without any sort of legal process, protection, or oversight, and then subjected them to such interrogation tactics as water-boarding, in which suspects are made to think that they are drowning in order to encourage them to talk. After all that, Guantanamo may be a relief.

In defense of these so called “alternative” practices—which Bush made clear he was not ceasing, but holding in reserve for future high-level detainees—the president asserted that the administration had gained valuable information. He then cataloged cases in which such information had purportedly identified other terrorists, facilitated their capture, and foiled a number of unspecified terrorist plots.

The president gave insufficient details to test his claims. We can’t know, for example, whether these men might have been captured without resort to disappearance and torture, nor can we know how central the information they provided was to the capture of others. Bush essentially asked the world to trust him on this.

But his track record provides little reason for trust. Whether it be the missing weapons of mass destruction in Iraq, the notion that Guantanamo held only the “worst of the worst,” the denial that torture has been a central part of administration policy, or the claim that Americans would be wiretapped pursuant only to court order, few of the administration’s claims in the “war on terror” have sustained careful analysis.

There is already evidence that President Bush either exaggerated or misspoke with respect to that torture evidence. He claimed that harsh interrogation of one of the CIA’s detainees led to the identification and capture of Khalid Sheikh Mohammed, in part by revealing that his nickname was “Mukhtar.” But according to intelligence officials, the government paid an informant $25 million for the tip that led to Mohammed’s arrest, and the CIA knew Mohammed’s nickname even before 9/11. He also claimed that harsh interrogation of Abu Zubaydah led to the identification of Ramzi Bin al-Shibh, but as Spencer Ackerman has pointed out:

A Nexis search for “Ramzi Binalshibh” between September 11, 2001 and March 1, 2002—the U.S. captured Abu Zubaydah in March 2002—turns up 26 hits for The Washington Post alone. Everyone involved in counterterrorism knew who bin Al Shibh was. Now-retired FBI Al Qaeda hunter Dennis Lormel told Congress who Ramzi bin Al Shibh was in February 2002.

Even if it were true that the disappearance and torture of CIA detainees led to the capture of other men, that very fact will very likely preclude any effort at bringing them to justice now. The Supreme Court has ruled that using coerced testimony to convict a defendant violates the most basic principles of fairness and thus violates the Constitution’s guarantee of due process. It does so, the court has ruled, not only because coerced confessions are inherently unreliable, but also because the tactic of coercing testimony is itself normatively unacceptable—even where it results in a true confession. The court has also held that evidence obtained by way of leads gained from such coerced testimony must also be excluded from trial as “fruit of the poisonous tree.”

As a result, defense lawyers for the 14 CIA detainees need only file President Bush’s speech at their trials; a speech in which he claims that the detainees were identified and captured through information gleaned largely from the CIA’s mistreatment of other detainees, and their prosecutions would almost certainly have to be dismissed as “tainted fruit.” Thus, President Bush has effectively immunized those who may actually be the “worst of the worst” from being held accountable for their wrongs.

The president has a solution, though. He simply won’t give the detainees a fair trial. Instead, he proposed in that same speech that Congress adopt procedures for special military tribunals to permit the admission of coerced testimony (and therefore, by extension, the fruits of such coerced testimony). Tortured testimony would be inadmissible, his proposed rules say, but not testimony coerced through measures short of torture. And this administration has long defined “torture” so narrowly that it does not include such tactics as water-boarding or threats of death.

One might dismiss this provision of the new rules as irrelevant, because surely the introduction of coerced testimony would violate the Constitution, the Geneva Conventions, or the McCain Amendment—which makes explicit that the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment protects everyone in U.S. custody, wherever they are held.

The administration has responses to each of these objections as well. It argues that the U.S. Constitution simply does not protect foreign nationals outside our borders—even when we have locked them up and are threatening to put them to death. The Supreme Court hinted that it disagreed with that position in Rasul and Al Odah, the Guantanamo detention cases of 2004, but it remains an open question.

As for the Geneva Conventions, the administration’s military tribunal bill would expressly bar any detainee from asserting in any court any rights under the conventions. That would render Geneva legally irrelevant even if its provisions are blatantly violated. And while the administration lost its fight to defeat the McCain Amendment altogether, it did succeed in ensuring that it lacked any means of enforcement.

If it gets its way now, the Bush administration will have rigged the military trial rules so that it can send detainees it has disappeared and tortured to their deaths, without being bothered by the fact that it abused their fundamental human rights.

In the long run, the court that must ultimately be satisfied is the court of world opinion. What will the world think if the United States is willing to throw aside the Constitution, the Geneva Conventions, and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, in order to achieve the convictions President Bush has now promised the families of 9/11 victims? One thing is certain—they will not be celebrating that justice has been done.

If the president truly wanted to bring these most culpable terrorists to justice, he should have treated them fairly from the outset. Having chosen to violate two of the most fundamental principles of international law—the prohibitions against “disappearances” and torture and cruel, inhuman, and degrading treatment—he has painted himself, and the American people, into a corner. His latest speech suggests that as with Iraq, he has no idea how to find a credible way out.