Crossed Fingers

( – promoted by buhdydharma )


mcjoan posted an interview yesterday at the Orange with Glenn Sulmasy, a National Security and Human Rights Fellow at Harvard, Professor of Law and Commander and Judge Advocate, U.S. Coast Guard Academy.  The interview spoke of how we should deal with the folks left at Gitmo, the notion of preventive detention.  He wrote a book:

His book presents a “third way” solution for trying the detainees in what he proposes to call the “war against al Qaeda,” and to deal with the thorny issues of the Guantanamo detainees. He proposes scrapping military commissions, forgoing military courts and federal civilian courts and establishing a new court system, a national security court, overseen by civilian judges that allows for habeas appeals and focuses exclusively on trying the “quasi-warriors” picked up on the battlefield in the war against al Qaeda.

It was an interesting post and mcjoan had a lot of criticism of Sulmasy’s ideas on how to deal with those pesky terrorists.  Sulmasy goes into great detail on how we can extricate ourselves from the mess Bush left Obama in making these decisions about what to do with the Gitmo detainees.

But there’s something wrong here and I haven’t seen it expressed to my satisfaction so I’m going to give it a shot.

I’m not going to provide links and evidence and big blockquotes — this isn’t a journalistic piece or even an opinion piece so much as me thinking “outloud.”

How can we decide what to do with the detainees who have been tortured for the evidence we got from them if we don’t deal with the fact of torture itself?

When President Obama spoke of his thinking on what to do with those left in Gitmo who were found to be “too dangerous” to release yet that finding was obtained with supposedly “tainted evidence,” he never mentioned the word torture.

Torture would taint evidence, I’d say.

In mcjoan’s interview, the notion of “coercion” (torture) is brought up and Sulmasy responds:

The problem becomes… that there are some that have certainly been coerced in some capacity, where trying them in a traditional court is going to become difficult. And in the article III court it would be almost impossible. I think that’s what the task force is looking at. What do we at this point now. What do we do with them and then what process we would use and I don’t think we’re even at the what would we use yet, in many ways.

My sense, it’s what do we do with what we want to do. The options are all on the table. Try them, try them in some kind of new court, have them in a court for indefinite for preventive detention, which again I think would never be the correct process to go forward if their not prisoners of war, if they’re not traditional warriors in a traditional armed conflict then we shouldn’t use that certainly. And again, as you know the end of hostilities in this is undeterminable at this point, it’s unascertainable which makes something like an indefinite regime more difficult.

Yeah, sure is difficult.  Almost impossible in the article III court.

If we end up making any kind of decision about these detainees without dealing head-on, straightfowardly, with the fact that much of the evidence we have against them was obtained by illegal torture, then how can justice ever be done?  I don’t care how meticulous the planning, if torture isn’t dealt with as part of the case, then it is a lie, no different than crossing your fingers while you’re saying you speak the truth.

And why is it that we couldn’t include this fact in court cases with those detainees?  Let the courts decide the damage done by torture and the potential damage that could be done by the detainees?  And if torture isn’t included in the case, then how can it be anything but a sham — whether decided by military tribunals, some new agency, or our regular court system?

This is the consequence of Obama’s silence on the matter of accountability for the act of torture.  This is the consequence to justice.  No different and no more sophisticated than crossing your fingers while claiming to tell the truth.


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  2. I saw that and I still havent had time to read it, and digest, will try to get to both later today. hers and yours.

  3. The whole matter of torture, the detainees and future disposition of them is a screwed up mess, IMO!  The REAL problem stems from the very beginning of all [except for a few] having been held without being charged with anything.  And any of the REAL information that was considered valuable was had prior to ANY torture. My understanding is that ALL detainees were tortured, so, yes, their evidences would surely be tainted.  Further, of all the detainees, only about two dozen were considered to be of any “value” whatsoever.  (The rest were innocent victims caught up in “sweeps” or turned over for money derived from turning them over.)  Nonetheless, these individudals remaining should be fairly tried, but what would they be tried for since they’ve never been charged with anything?  A made-up charge in order to try them?  Or a “you may have had some sort of affiliation with Al Qaeda, therefore, we must try you.”  It’s f..ked up!

    Here’s Senator Sheldon Whitehouse with Rachael Raddow on being very afraid, Cheney style:  Terrorists!  Whitehouse blows a hole right through Cheney’s lies.

    (Would love to imbed.  Maybe, you’ll let go of your secret on MSNBC imbedding!  😉  )

    • Joy B. on June 15, 2009 at 22:08

    The refusal to deal judicially with torture-as-policy serves mostly to make mincemeat of the disposition of prisoners who have been tortured. Even military judges don’t want to deal with this sort of “tainted evidence,” so the neocon idea of military commissions was a non-starter all along. Because everybody involved knows that evidence and confessions obtained by torture must be rightly excluded in judicial proceedings.

    The “immanent threat” excuse doesn’t wash either. Law enforcement knows that evidence of immanent crimes obtained illegally cannot be used to secure convictions of those whose rights have been violated. That’s never stopped illegal evidence gathering, it just means any court proceedings must be based on other, legally obtained evidence.

    I suggest dealing with the ‘detainees’ the same we we’ve always dealt with detainees and POWs. When the war is over or cease-fire declared, send ’em home.

  4. Good essay.

    To keep changing the name of the court might somehow obliterate the fact that the not yet charged people were tortured, but I seriously doubt it.

    To change the name of the court does not change the law against torture.

    “I suggest dealing with the ‘detainees’ the same we we’ve always dealt with detainees and POWs. When the war is over or cease-fire declared, send ’em home.”

    What war? The war on terror.

    The only war going on is the war OF terror. Every one of the humans being detained without charge, has been terrorized, kept from their families, in a far away land, kept from their right to walk freely, because of a war of ideas.

    There will never be a cease fire on ideas, no matter how much torture is used.

    Having been in court many times, I`d be doing life without, if I was to be tried for what I think, but I walk free. (for now)

  5. or two.

    I get so upset with all this. So upset. I think about it, about why, how, I get so … I dont know, wrangled.

    Yes, its all quite horrific, what they did. But its just that much more UNACCEPTABLE to me b/c it was done in my name.

    AND…. they are so brazen in their insistence in their rightness of having done it and that they can and will do it again. In broad frikkin daylight, and brag about it even. That is whats cripples me. Those are the consequences that trouble me so … the foreseeable future where they do it again. And to who, or why, on what grounds? Because they dont like “the way you part your hair”?

    No. With every fiber of my being… NO.

    What’s not to “get” about this?

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