The prisoners on trial before military tribunal at Guantanamo for their attacks on the United States are unable to present evidence that they were tortured by the CIA even though they are facing the death penalty. This is what has been happening:
On Tuesday, October 22, the lawyers for the September 11 accused argued that the Guantanamo military commissions’ protective order (pdf) violates the United Nations Convention Against Torture. The protective order states that the defendant’s “observations and experiences” of torture at CIA black sites are classified. Defense counsel say that this violates the Convention Against Torture’s requirement that victims of torture have “a right to complain” to authorities in the countries where they are tortured, and makes the commission into “a co-conspirator in hiding evidence of war crimes.”
It is not only the defendants’ lawyers who object to the protective order. The ACLU has called the restrictions on detainees’ testimony “chillingly Orwellian.” Earlier this year, the Constitution Project’s bipartisan, independent Task Force on Detainee Treatment (for which I served as staff investigator) found that the military commissions’ censorship of detainees’ descriptions of their own torture could not be justified on grounds of national security, and violated “the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.” This month, the European Parliament passed a resolution that called on the United States “to stop using draconian protective orders which prevent lawyers acting for Guantánamo Bay detainees from disclosing information regarding any detail of their secret detention in Europe.”
The reason the prisoners are being denies their rights to present the evidence of torture, even though they are facing the death penalty, is this:
In April 2009, over the CIA’s objections, Obama declassified four Office (pdf) of Legal (pdf) Counsel (pdf) (OLC) (pdf) opinions that described in graphic detail the brutal techniques that the CIA used against captives after September 11, because in his judgment their release was “required by the rule of law.”
But today, the administration takes the position (pdf) that the release of the OLC memos only declassified the CIA’s use of torturous interrogation techniques “in the abstract.” The details of any individual detainee’s treatment in CIA custody are still top secret. The CIA claims this is necessary because disclosures about individual interrogations would “provide future terrorists with a guidebook on how to evade such questioning,” and “provide ready-made ammunition for al-Qa’ida propaganda.”
The one thing that the defense lawyers, the prosecutors and the judges all agree on, President Barack Obama could fix this.
Paul Kiel – January 30, 2008, 4:12 PM EST
Sen. Joe Biden (D-DE) said that he’d been getting the impression that Mukasey really thought about torture in relative terms, and wanted to know if that was so. Is it OK to waterboard someone if a nuclear weapon was hidden — the Jack Bauer scenario — but not OK to waterboard someone for more pedestrian information?
Mukasey responded that it was “not simply a relative issue,” but there “is a statute where it is a relative issue,” he added, citing the Detainee Treatment Act. That law engages the “shocks the conscience” standard, he explained, and you have to “balance the value of doing something against the cost of doing it.”
What digby said:
So basically, while we “do not torture” we have admitted “in the abstract” that we did torture, but if any of those tortured reveal the details of that torture the terrorists of the future will know how we torture and learn how to evade it. So we’re obviously still torturing. Am I missing something?>
No, digby, you didn’t miss a thing.