1 Boring Old Man

What If Trials Prove Torture Wasn’t Necessary?
By: emptywheel
October 26, 2009

Cynthia Kouril and Adam Serwer and both have really good smackdowns of Mukasey’s op-ed against civilian trials. Cynthia writes,

The thing that bothers me most about this article though, comes near the end:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

This twisted notion that we would only observe our own laws, our own Constitution, our own Enlightenment Age ideals—if there was something in it for us, if we could somehow profit by it— appalls me. NO, No, no, no, no. We observe our own laws, we follow our own constitution, we hew to our own Founding Father’s ideals, because it is the RIGHT THING TO DO.

And Adam, responding as well to Michael Isikoff’s report that 25 detainees will soon be shipped to the US for trial, speculates,

I’m skeptical that the Classified Information Procedures Act, the statute governing the disclosure of classified information in federal court, is inadequate to prevent whatever national security information might be disclosed in any of these trials. But remember, if you look at the more declassified version of the 2006 CIA Inspector General’s report that was recently released, there are 24 straight pages of redacted information describing what was done to KSM. If you’re wondering what Mukasey and the others are worried about a civilian trial disclosing, it’s a good bet that some of it is probably in there.

Perhaps, Adam argues, Mukasey [and Lindsey Graham and John McCain] don’t want civilian trials because they would provide Khalid Sheikh Mohammed opportunity to detail the torture done to him.

There’s one other possibility, though. If DOJ decides KSM can get a civilian trial, that means there’s enough information to try him and his alleged co-conspirators independent of any evidence tainted by torture. It means the government learned sufficient information about the 9/11 plot via people they did not torture, pocket litter, or in sessions that they believe they can segregate off from the torture they did to KSM.

And that–along with what will surely be extensive litigation about what is admissible–will make it clear how much information was available via means other than torture. Granted, they’ll be trying KSM just for 9/11 and not, presumably, for the Liberty Tower Plot [though they have information about that, too, via other sources than KSM]. But a civilian trial will expose some of what was available without using torture.

And that may be why the apologists are afraid of civilian trials.

Instead, they’ve chosen a different path entirely – giving in to the angry left, slandering people who did a hard job well, and demagoguing an issue more serious than any other they’ll face in these four years. No one knows just where that path will lead, but I can promise you this: There will always be plenty of us willing to stand up for the policies and the people that have kept this country safe.

On the political left, it will still be asserted that tough interrogations did no good, because this is an article of faith for them, and actual evidence is unwelcome and disregarded. President Obama himself has ruled these methods out, and when he last addressed the subject he filled the air with vague and useless platitudes. His preferred device is to suggest that we could have gotten the same information by other means. We’re invited to think so. But this ignores the hard, inconvenient truth that we did try other means and techniques to elicit information from Khalid Sheikh Muhammed and other al-Qaeda operatives, only turning to enhanced techniques when we failed to produce the actionable intelligence we knew they were withholding. In fact, our intelligence professionals, in urgent circumstances with the highest of stakes, obtained specific information, prevented specific attacks, and saved American lives.

In short, to call enhanced interrogation a program of torture is not only to disregard the program’s legal underpinnings and safeguards. Such accusations are a libel against dedicated professionals who acted honorably and well, in our country’s name and in our country’s cause. What’s more, to completely rule out enhanced interrogation in the future, in favor of half-measures, is unwise in the extreme. In the fight against terrorism, there is no middle ground, and half-measures keep you half exposed.

For all that we’ve lost in this conflict, the United States has never lost its moral bearings – and least of all can that be said of our armed forces and intelligence personnel. They have done right, they have made our country safer, and a lot of Americans are alive today because of them.

But it’s only been nine months and a lot has happened, a lot accomplished. The Stimulus passed. The pressure is on for Wall Street. Regulations are being debated. The whole War thing is being re-evaluated. There’s going to be a Health Care Bill of some kind. And there’s plenty enough transparency to know what happened with the Torture Program. It’s moving slower than we hoped, but it’s moving nonetheless.

As emptywheel‘s post implies, the torture thing is going to come out. Whether it’s from a trial, or a hearing, or an investigation – it’s going to see the light of day. And the people involved are going to get beyond the fog of secrecy and subterfuge and begin to talk about it. And comments like "… to call enhanced interrogation a program of torture is not only to disregard the program’s legal underpinnings and safeguards" are going to sound pretty lame. We forget that this same man originally denied the program existed. Then Abu Ghraib came along, and it became "bad apples." Now it has become "enhanced interrogation" by "dedicated professionals who acted honorably and well" under "legal underpinnings and safeguards." Well, the term "enhanced interrogation" fools no one any more, the DoJ has renounced those "legal underpinnings," there’s ample evidence that there were no "safeguards," and the "dedicated professionals" turned out to be misguided contractors – "moral bearings?" not so much. This stone is rolling downhill, slowly picking up speed. I’d bet it’s beyond stopping already, and a lot of the frantic resistance may well be buried by a coming avalanche. The Reign of Error was too loud to be forgotten…