Thiessen's misleading attack on due process
Earlier this week, Washington Post columnist Marc Thiessen crowed about the difficulties the Justice Department is facing in its prosecution of alleged Tanzanian U.S. Embassy bomber Ahmed Khalfan Ghailani, after Judge Lawrence Kaplan excluded the testimony of a key witness because his identity was originally discerned through torture.
One might reasonably conclude that this shows one of the reasons why torturing people is a bad idea, but Thiessen argues that, "The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration's ideological insistence on treating terrorists like common criminals and trying them in federal courts."
Thiessen is restating The Liquor Store Fallacy, the notion that military courts are better prepared to handle terrorism cases, while civilian courts are more suited to trying "someone who robbed a liquor store." In fact civilian federal prosecutors are far more experienced in such matters, while military prosecutors are actually the ones who are more used to prosecuting smaller scale crimes.
But the administration's "ideological insistence" is one that Thiessen's former boss presumably shared, since the Bush administration prosecuted hundreds of terrorism-related cases in civilian court, with an 88 percent conviction rate according to NYU's Center for Law and Security. Meanwhile, only four military commissions convictions have been secured since the system was created. It seems obvious why Thiessen's former boss more often used the civilian system as well -- it has a much better track record. As former CIA Director Michael Hayden recently noted, there's a "powerful continuity" between this president and the last one.
Thiessen's ultimate goal, though, isn't so much extolling the virtues of the military commissions system as defending torture. In doing so, he overstates Judge Kaplan's conclusions about the effectiveness of the Bush administration's torture program. Thiessen writes that Kaplan concluded that intelligence was obtained from Ghailani through so-called enhanced interrogation techniques while he was in CIA custody, and that "this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program."
Except that's not actually what Kaplan wrote. He wrote that "the government had reason to believe this valuable intelligence could not have been obtained except by putting Ghailani into the [CIA] program." Kaplan doesn't draw the unilateral conclusion Thiessen wants him to draw, so he simply left out the qualifying phrase. In fact, it would be very odd for Judge Kaplan to draw a more definitive conclusion than CIA Inspector General John Helgerson, who after investigating the program, wrote in his 2004 report that "The effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured." This is in character for Thiessen -- he previously tried to claim that waterboarding Khalid Sheik Mohammed prevented a terror plot that had unraveled a year before KSM was actually captured. Thiessen has also implausibly claimed waterboarding isn't torture, but he has yet to take up former SERE Instructor Malcolm Nance's offer to undergo the procedure himself.
Moreover, the argument against torture is not that it can never solicit useful information. It's that on the whole, it produces less reliable information than traditional interrogation, it hampers potential prosecution, it's a moral abomination and it's illegal. As Kaplan noted, while "no one denies the agency's purpose was to protect the United States from attack," the methods used "might give rise to civil or even criminal charges." Thiessen left that part out, too.
Thiessen's argument is that the witness's testimony might have been allowed in a military commission, where the rules of coerced evidence are more permissive. That's true -- a military commission judge recently allowed the confession of Gitmo detainee Omar Khadr despite the fact that he had been previously threatened with rape -- but it's hardly a forgone conclusion. Thiessen quotes Lt. Col. David Frakt saying, "because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission." I don't know how this bolsters Thiessen's argument. The regulations allow the judge to decide to admit something based on whether or not it's "in the interests of justice," but in either forum, civilian court or military commission, the admissibility of such evidence is up to the judge. Even during the Bush administration, when the rules governing admissibility of coerced evidence were even more permissive, convening authority Susan J. Crawford declined to bring charges against alleged 20th 9/11 hijacker Mohammed al-Qahtani because "His treatment met the legal definition of torture."
Meanwhile, the administration is already struggling in other cases because of evidence gleaned from coercive methods. The government is having a difficult time justifying the detention of Abdul Rahim Mohammed Uthman because two of the witnesses they're relying on were tortured. Worse, the government may need those same two witnesses to try by military commission the alleged perpetrator of the U.S.S. Cole bombing, Abd al-Rahim al-Nashiri, who was abused even beyond the "legalized" torture guidelines offered by the Bush-era Office of Legal Counsel. The administration recently postponed his prosecution.
Then there's the fact that military commissions tend to give out light sentences. Thiessen notes that if Ghailani were acquitted, the administration could continue to hold him as an enemy combatant. The sentence given to Osama bin Laden's former limo driver, Salim Hamdan, was so light that the Bush administration considered holding him as an enemy combatant after serving his alotted sentence.
Thiessen overstates his case for military commissions in other ways -- as Ben Wittes points out, he falsely suggests KSM could have been executed years ago, but it's not clear that military commissions allow the accused to plead guilty in capital crimes. The numbers speak for themselves -- out of the hundreds of terrorism cases tried in civilian court, the administration is struggling with the Ghailani case because he was tortured. But Thiessen's argument in favor of military commissions is revelatory in the sense that it reveals their true purpose -- to give the illusion of due process while actually stacking the case in the government's favor.
"The Ghailani conviction is in trouble because we didn't obtain the information in a way that's consistent with our laws," says Eric Montalvo, former marine and an attorney with Puckett and Faraj who has represented Gitmo detainees in military commissions cases. "What's the definition of justice? Is it getting a conviction? Or is it securing a process whereby the right result occurs?"
The reality is that the torture techniques employed by the Bush administration, not the law, are what's hampering Ghailani's prosecution. The case against Ghaliani is going forward, which suggests Thiessen's breathless characterization of the affair as a "catastrophe" is absurd. The "catastrophe" is that the process by which terrorists can be brought to justice has been jeopardized by the torturous interrogations Thiessen is so fond of.
UPDATE 11:54 a.m: Marcy Wheeler points out that in Judge Kaplan's latest ruling, he writes that the witness' testimony would likely have been excluded in a military commission proceeding as well. He writes that "statements obtained by torture or cruel, inhuman, or degrading treatment," and evidence derived threrefrom, and could require exclusion of Abebe's testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding."
The Constitution, with all its rules and principles. What a silly document.
| October 15, 2010; 11:03 AM ET
Categories: Foreign policy and national security
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