The Legal Cost of Torture


One of the big problems with the Bush administration’s decision to break the law constantly in pursuit of counterterrorism is that once you’re doing a bunch of illegal stuff, it’s very hard to stop. For example, Muhammed al-Qahtani is someone who it seems like you’d like to prosecute for terrorism-related crimes but it seems we can’t since he was tortured, ruining the evidence:

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a “life-threatening condition.”

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

This is one reason why veteran interrogators and criminal investigators always tended to be extremely skeptical of the enthusiasm for torture coming from the top of the command chain and some of the other government agencies — they have an understanding of the value of doing things the right way. Evidence obtained via torture is useless.

It’s also a reason why I have some doubts about the viability of a “let bygones be bygones” attitude toward Bush-era war crimes. We have here a legal determination that a captive in US custody was tortured. And if he was tortured, that means someone tortured him. And torture is a crime. And most likely, someone ordered the torture. And someone knew about the torture and didn’t do anything about it. And as we attempt to regularize the legal status of various other people being held by the United States similar findings will be relevant to future questions about who can and can’t be prosecuted and for what. To me, it doesn’t make any sense to say that we’re going to have determinations that people were illegally tortured and yet we’re just not going to do anything about it. It’d be one thing to pardon people for this kind of thing as part of some larger legal or investigative strategy. But to just leave it hanging? If Crawford thinks Qahtani can’t be prosecuted because he was tortured, then it stands to reason that there’s someone who can be prosecuted for the torturing.