http://www.latimes.com/news/printedition/opinion/la-oe-cole3dec03,1,470542.story
Torture makes justice impossible
By
David Cole
DAVID COLE, a law professor at Georgetown University, is author of "Enemy
Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism"
(New Press, 2005).
December 3, 2005
WHEN ATTY. GEN. Alberto Gonzales announced shortly before Thanksgiving that Jose
Padilla had been indicted, it came as some surprise that what he was actually
charged with had virtually nothing to do with what the United States had been
saying about Padilla for the more than three years that he was held in military
custody as an "enemy combatant." In news conferences, Gonzales' predecessors had
described Padilla as public enemy No. 1: an Al Qaeda operative accused of
plotting to detonate a "dirty bomb" and to blow up apartment buildings.
But the indictment makes none of those claims. Instead, it charges Padilla only
with playing an extremely marginal role helping a group of people who are
alleged to have conspired to provide financial support to unspecified terrorists
abroad. No one in the indictment is alleged to have engaged in or plotted any
violence, and the allegations specific to Padilla do not even claim that he
provided financial support to terrorists. Indeed, the government's case against
Padilla is so flimsy that there is a substantial chance that he will be
acquitted — that is, if he can get a fair trial after the public image the
Justice Department has painted of him.
The disconnect between the allegations aired in news conferences and the charges
lodged in court are disturbing. If Padilla was in fact plotting with Al Qaeda to
detonate a dirty bomb, shouldn't he be tried for that crime, and punished
accordingly? Why proceed instead on a paper-thin set of charges that might lead
to his acquittal and release?
The answer is, in a word, torture. Administration sources explained to New York
Times reporters Douglas Jehl and Eric Lichtblau that the reason they did not
charge Padilla with more serious crimes is that the evidence allegedly
supporting those charges was extracted from high-level Al Qaeda detainees —
Khalid Sheikh Mohammed and Abu Zubeida — through questionable means. They are
being held in undisclosed locations and reportedly have been interrogated with
such tactics as "waterboarding," in which the suspect is made to think he will
drown if he doesn't talk.
Evidence obtained through waterboarding would never be admissible in a court of
law. The Supreme Court has long made clear that evidence obtained through any
physical coercion is per se inadmissible. And this is no technicality. Such
measures are said to produce inherently unreliable evidence and "shock the
conscience."
The Padilla case illustrates one of the oft-overlooked costs of torture and
other means of coercive interrogation — the very tactics the administration is
seeking to preserve in its fight against an amendment offered by Sen. John
McCain (R-Ariz.) that would prohibit all such methods. Because evidence obtained
through coercion is universally viewed as inadmissible in court, the tactics
effectively immunize suspects and those they implicate from prosecution.
This problem not only infects the Padilla case but virtually everyone held at
Guantanamo Bay, Cuba, and in secret CIA "black sites." The U.S. is holding about
500 "enemy combatants" at Guantanamo and reportedly another 30 or more in
undisclosed locations. Many of these are alleged to be Al Qaeda fighters, some
very high level. Khaled Sheikh Mohammed, for example, is said to be the
mastermind of the 9/11 attack.
Anyone who fights for Al Qaeda is guilty of war crimes, as Al Qaeda has no right
to engage in war and has adopted a policy and practice of targeting civilians.
In theory, we should be able to try them, convict them and imprison them.
But more than four years after President Bush created military tribunals, not a
single case has gone to trial. Only a handful of the hundreds of detainees have
even been charged. One probable reason for the military's reluctance is the real
risk that any trial will turn into a trial of the United States' own
interrogation practices. Although the military tribunal rules do not exclude the
use of testimony extracted by torture, no trial will ever be viewed as
legitimate if it allows such testimony, and defense lawyers are certain to make
this a central issue in any proceeding.
In short, by electing early on to violate the universal prohibition on torture
and cruel, inhumane and degrading treatment, the administration has not only
inflicted unconscionable harm on detainees from Abu Ghraib to Guantanamo, and
done incalculable damage to the U.S. image abroad, it has painted itself into a
corner. It is becoming increasingly unacceptable to hold so-called enemy
combatants indefinitely without trial. But we have shielded the vast majority of
them from being tried for the wrongs they may well have committed.
President Bush vowed shortly after 9/11 that he would capture the terrorists and
bring them to justice. But his own tactics have made that promise impossible to
deliver.