[A]s a moral matter, the possibility that a suspect could be put to death in the United States based on statements coerced from him by torture is an abomination — even more so because it might be legal. Under the Military Commissions Act, evidence obtained by coercion may be introduced at trial provided a judge finds it “reliable and probative” (meaning persuasive and damning). Congress rushed to pass this deeply flawed act, which also denies detainees the ancient writ of habeas corpus, after the Supreme Court ruled in 2006 that the military commissions could not be used to prosecute enemy combatants for war crimes without congressional authorization. But the act failed to guarantee that the tribunals would give defendants a fair trial, or to provide any mechanism for the release of innocent detainees wrongly deemed enemy combatants.
The military judges should refuse to admit any evidence tainted by waterboarding or any other form of illegal coercion — but they may have little choice given that they’re required to conduct the trial under the odious statute passed by Congress. Pentagon officials say they’re confident that they have enough unclassified, incontrovertible evidence to prove Mohammed’s guilt without resorting to any coerced testimony. They’d better be right. Otherwise, the trial will fail at its most important task: to show the world that the 9/11 terrorists were not noble freedom fighters but common criminals who committed mass murder. If prosecutors cannot make that case without secret evidence or testimony tainted by abuse, they will dishonor U.S. justice and our cause.
I get frustrated with waterboarding opponents who self-righteously argue that no amount of waterboarding of any individual could ever be justified under any circumstances.
But I also get frustrated with waterboarding supporters who minimize the downsides of waterboarding or other coercive techniques.
I have said about waterboarding and other coercive interrogation techniques:
[T]here are serious costs to such an approach . . . There are slippery slope arguments grounded in reality, arguments about the kind of society we want to be, arguments about the reliability of the information we get, and so on. Any confession you get is going to be unusable in court, and will interfere with any criminal prosecutions that might occur.
Apparently it may be legal by statute to use coerced confessions in the tribunals that the 9/11 suspects will face. But it may not be constitutional. Frankly, I rather doubt that the Supreme Court will allow the imposition of the death penalty based on testimony obtained by coercion — whether it’s considered “reliable” or not.
Even if it is legal, a prosecution based on such testimony would not vindicate our position in the world community. (And, as much fun as it is to mock the concept, it does matter to some degree what the world thinks of us.) It would rightly remind other countries of the totalitarian governments of the last century, which habitually executed people in trials based on confessions obtained by torture. By obtaining confessions in this way, we open ourselves up to criticism that the confessions are false. People often make that argument about Khalid Sheikh Mohammed’s confessions.
The editors have it right. Waterboarding, and other forms of interrogation that would result in coerced confessions, has serious downsides. This is one of them: once you have done it, what do you do with the people you did it to?
All I can do is agree with the editors: I sure hope the case can be made without this coerced testimony. If not, we’re in trouble.