US Special: America's Legacy of Torture

On Thursday, The New York Times published the editorial "A Legacy of Torture":

The Bush administration insisted that “enhanced interrogation techniques” — torture — were necessary to extract information from prisoners and keep Americans safe from terrorist attacks. Never mind that it was immoral, did huge damage to this country’s global standing and produced little important intelligence. Now, as we had feared, it is also making it much harder to try and convict accused terrorists.

The editorial continued:

Because federal judges cannot trust the confessions of prisoners obtained by intense coercion, they are regularly throwing out the government’s cases against Guantánamo Bay prisoners.

A new report prepared jointly by ProPublica and the National Law Journal showed that the government has lost more than half the cases where Guantánamo prisoners have challenged their detention because they were forcibly interrogated. In some cases the physical coercion was applied by foreign agents working at the behest of the United States; in other cases it was by United States agents.

Even in cases where the government later went back and tried to obtain confessions using “clean,” non-coercive methods, judges are saying those confessions too are tainted by the earlier forcible methods. In most cases, the prisoners have not actually walked free because the government is appealing the decisions. But the trend suggests that the government will continue to have a hard time proving its case even against those prisoners who should be detained.

Credit to the Times for not sheltering Torture within quotation marks and instead noting how the Bush Administration tried to hide it with the euphemism "enhanced interrogation". Credit for calling out the rationalisation/deception that it had produced significant intelligence and for mentioning that this was a moral transgression.

But this is an article that could and should have been written years ago. The legal complications were clear soon after the Guantanamo Bay detention facility was opened in 2002, after the "rendition" of detainees not only to Guantanamo but to "black sites" in countries in the Middle East and Eastern Europe was exposed (but often gingerly set aside), and after techniques such as waterboarding were revealed.

Even the specific information in the ProPublica study is not new. Andy Worthington, who has worked tirelessly for years to bring out the details on Guatanamo's legal minefield, has been keeping a running tally of the habeas corpus cases where prisoners were petitioning for their freedom. Latest score: Prisoners 38, US Government 15.

And the twists and turns of interrogation, torture, and trials are far from complete. Charlie Savage wrote in The New York Times this week:

After working for a year to redeem the international reputation of military commissions, Obama administration officials are alarmed by the first case to go to trial under revamped rules: the prosecution of a former child soldier whom an American interrogator implicitly threatened with gang rape.

The defendant, Omar Khadr, was 15 when he was captured in Afghanistan and accused of throwing a grenade that killed an American soldier. Senior officials say his trial is undermining their broader effort to showcase reforms that they say have made military commissions fair and just....

Senior officials at the White House, the Justice Department and the Pentagon have agreed privately that it would be better to reach a plea bargain in the Khadr case so that a less problematic one would be the inaugural trial, according to interviews with more than a dozen current and former officials. But the administration has not pushed to do so because officials fear, for legal and political reasons, that it would be seen as improper interference.

Mr. Khadr’s trial at the naval base in Guantánamo Bay started earlier in August but was put on a month-long hiatus because a lawyer got sick and collapsed in court. The pause has allowed the administration to consider the negative images the trial has already generated.

Chief among them are persistent questions about the propriety of prosecuting a child soldier. Moreover, in a blow to establishing an image of openness, the Pentagon sought to ban journalists who wrote about publicly known information that it decreed should be treated as secret.

The judge declined to suppress statements Mr. Khadr made after an Army interrogator sought to frighten him with a fabricated story about an Afghan youth who disappointed interrogators and was sent to an American prison where he died after a gang rape. In a pretrial hearing, the interrogator confirmed making that implicit threat, but the judge ruled it did not taint Mr. Khadr’s later confessions.

And prosecutors disqualified an officer from the jury because he said he agreed with President Obama that Guantánamo had compromised America’s values and international reputation.

So let's return to the "Legacy of Torture". While The New York Times should be credited for joining the recognition of the Bush Administration's wrongs --- which they got away with for so long in part because the media sometimes supported, often blinded itself to "enhanced interrogation" --- I can't help thinking that even this has a problem with priorities.

Certainly the failure to convict detainees is an outcome of the torture regime that began in 2002. But there are other outcomes that might be placed before, rather than after, this. In an editorial considering the "legal", perhaps the newspaper could have said that the Bush torture was --- beyond any doubt --- illegal.

And perhaps it could have put the "immoral" at the top of the list, especially because the "immoral" of this story has not been remedied and will not be remedied simply by bemoaning a Not Guilty verdict for someone who has spent years behind American bars.