[Benjamin Wittes] To the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly, I agree with you, Emily , that the Defense Department should not put them to death. The hard question is what to do if, notwithstanding their brutal treatment, the military commissions can deliver “clean” convictions that do not depend on coercion at all. There are several ways this could happen. The first is that the defendants-some of whom have evinced significant pride in their acts-do not contest the allegations against them, but actively take credit for them. This is what KSM did in his combatant status hearing and also what Richard Reid did in federal court and two other detainees tried to do in prior military commissions. It strikes me as a plausible, even likely, disposition for at least some of the 9/11 defendants.
The second possibility is that prosecutors may be able to convince a military commission-as civilian prosecutors convinced a judge and jury in Jose Padilla’s case—that the evidence they are presenting is in no way tainted by the circumstances of the defendants’ initial interrogation. So while I agree with you that this country shouldn’t “be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony,” that doesn’t seem to me to end the inquiry. These cases could raise a different question: whether the fact of having been tortured-or something close to it—renders one ineligible for the death penalty, no matter how culpable one is and no matter how well-scrubbed one’s criminal trial might be. I hate the death penalty enough that I have trouble answering that question dispassionately, but I think my answer is that it probably doesn’t—that is, if the conviction is truly unaided by the fruits of coercion, I would not fight execution based on the fact of the coercion having taken place (though I would, as described earlier , have grave anxieties about execution in these cases for other reasons).
That, of course, raises the question of whether the rules of the tribunals created by the MCA are strong enough to make sure that convictions are not tainted. The answer is, well, maybe. In theory, they could stand to admit a fair bit of coerced testimony if the presiding judge deems it probative and reliable given the totality of the circumstances. But that very standard also allows a lot of litigation over the reliability of a given piece of evidence and its probative value under the circumstances under which authorities got it. The result of that litigation could well be that the tainted stuff stays out. In other words, I can imagine unfair trials under the MCA or very fair trials under it. So all the rhetoric aside, I don’t think we’ll know until trials actually happen how fair or unfair the system really is.
The truth is that a lot of trial systems have rules that permit horrifying unfairness under the worst circumstances. A few years ago, I did a series of editorials for the Washington Post about procedural rules in Virginia criminal cases under which more than 10 percent of convicts used to lose their right to appeal because of lawyer errors in filing appellate documents. The process of restoring these defaulted appeals would generally cause the inmates to lose all ability to file habeas corpus actions. (The rules have since changed.) Nothing in the MCA is that indefensible, in my opinion—yet we don’t generally talk about Virginia rules as so pervasively unfair as to render trials conducted in the state as per se illegitimate. We treat each case on its own merits. While I do suggest substantial changes to the MCA in my forthcoming book (about which I’m grateful for Emily’s kind words), I’m inclined to view trials under it as warranting at least that level of confidence.