Fruit of the Poisonous Tree
by Lee
You know that stuff we did that wasn’t even torture (except when it was done to John McCain by the Vietcong)? Well, it might be throwing a wrench into our shit-hot prosecution of one of the 9/11 terrorists.
The Pentagon has dropped charges against a Saudi citizen alleged to have been the “20th hijacker” in the 11 September 2001 attacks on the US.
Mohammad al-Qahtani was one of six Guantanamo Bay inmates charged with murder and war crimes in February.
The Pentagon said the case against the other five defendants would proceed.
Prosecutors are seeking the death penalty against the suspects in a case before military tribunals at the US prison camp in Guantanamo Bay.
A Pentagon official said the charges against Mohammad al-Qahtani had been dropped “without prejudice”, meaning they could be reinstated.
The US military gave no reason for its decision.But lawyers for the defendant say they believe the charges were dropped because he “was tortured” under interrogation.
The decision could have implications for the other five suspects, whose lawyers claim that similar treatment was meted out to them, the BBC’s Adam Brookes reports from Washington.
Here’s the meat and potatoes.
In 2006, he recanted accusations he had made against fellow detainees of having links to al-Qaeda.
His lawyer told Time magazine the statements had been extracted under torture.
The Saudi was reportedly submitted to stress positions, sleep deprivation and humiliation at Guantanamo.
Officials said he had been subjected to a harsh interrogation authorised by former US Defence Secretary Donald Rumsfeld.
Let’s say he did it. And let’s say that we tortured him. We could have gotten the evidence the old fashioned way—legally, through interrogation—but that just wasn’t macho enough, I guess. So now we’ve tortured him, and it might hinder the ability to prosecute him. After all, there *is* the teensy weensy possibility that when he was being tortured he said what his torturers wanted him to say in order to get them to stop torturing him.
What a clusterfuck.
Comments
See? It’s another one where you win. The MCA prohibits the use of statements derived from torture, so his lawyers think that’s why they dropped the case.
Isn’t it better to let one bad man go free rather than to rely on torture? The system is correcting itself.
See? It’s another one where you win. The MCA prohibits the use of statements derived from torture, so his lawyers think that’s why they dropped the case.
This is just it, Thrill. I don’t want to *win*. I want the fucker in jail or executed. The problem is that because our gung-ho cowboy administration decided to violate every rule in the world regarding torture, there now stands a chance that these guys may get lighter sentences, or even their convictions overturned, because a bunch of dickheads in the administration wanted to use torture.
This was exactly the scenario I posited in the other thread, pointing out that torture could be self-defeating for exactly this reason. Just call me Kreskin…
Humiliation?
I would say that humiliation is not in the realm of torture, at least under most definitions of what “humiliation” encompasses.
That point aside it’s also worth noting, and I think Thrill was getting at this, that despite the various attempts to say we’re exactly like other countries when it comes to this issue, at least our country has mechanisms to correct it (and no, I don’t think the Bush administration is willingly fessing up to its mistakes; I’m talking about other correcting mechanisms.)
Just call me Kreskin…
You want credit for a self-evident proposition? The very title of this post itself has been part of our Fourth Amendment law for a long time.
I want the fucker in jail or executed.
No, you want us to obey the law. If you wanted him punished harshly, you would be for it no matter what the cost.
The problem is that because our gung-ho cowboy administration decided to violate every rule in the world regarding torture, there now stands a chance that these guys may get lighter sentences, or even their convictions overturned, because a bunch of dickheads in the administration wanted to use torture.
Well, maybe the Administration can retroactively change the law to allow confessions obtained through torture…
You want credit for a self-evident proposition? The very title of this post itself has been part of our Fourth Amendment law for a long time.
Go read the other thread, where Thrill debated with me about whether this could happen, hypothesizing that torture was used for intelligence-gathering, not evidence-gathering.
Go read the other thread, where Thrill debated with me about whether this could happen, hypothesizing that torture was used for intelligence-gathering, not evidence-gathering.
I made it clear that a confession could be supressed if torture were proven. I also said that it wouldn’t help KSM because there is enough evidence to convict him without it.
Also, it’s not really known why this character had his charges dismissed. His lawyers are alleging torture, which is what I’d expect. At any rate, the case against him could be re-opened at any time with new evidence.
No, you want us to obey the law. If you wanted him punished harshly, you would be for it no matter what the cost.
Well, part of the problem is he may not actually be guilty; I think Lee meant assuming he is actually guilty. If the torture led to faulty information, then surely it’s wrong to give a license to people to do whatever they wish.
But ignoring that, the idea that we should make the law subservient to punishment in each individual case has been rejected for a long time; it’s why we have the exclusionary rule in the first place.
If we take your idea to the extreme, we’d let cops bust in wherever they may like, rough someone up, and then--ignoring whether the confession was true or not--we convict them and maybe slap the cops with a light civil penalty. You may respond that cops can generally be trusted and would only bust in those houses holding actual criminals, but even if we grant that (dubious, in my view) assumption, the fact of the matter is that there will always be mistakes. If such steps were necessary to catching people, then I’d be more in favor of it, but clearly there are alternative ways to capture people and convict them that do not involve the pratfalls.
And, of course, one of the reasons cops are so careful in this country to begin with is partly because the consequences of messing up can be harsh. If you remove the consequences, it’s only natural people would get sloppier.
Oh, I agree (especially in the case of KSM; that probably wasn’t the best example, given all the other evidence against him). The point, though, is that torture is still self-defeating. I’d bet on the side of this guy having been tortured. The US doesn’t dismiss these types of charges willy-nilly.
Well, part of the problem is he may not actually be guilty; I think Lee meant assuming he is actually guilty. If the torture led to faulty information, then surely it’s wrong to give a license to people to do whatever they wish.
There could be any number of problems with the prosecution’s case. To automatically say that it’s because of torture is grasping. If the whole case was built around a coerced confession, then the government must let him go. However, if stress positions caused this guy to give up some critical information that proved more valuable than him, I say it was worth it.
Addendum to my post above: It seems you’re talking about ignoring the torture and allowing the conviction to proceed based on other available evidence, when you say:
I made it clear that a confession could be supressed if torture were proven. I also said that it wouldn’t help KSM because there is enough evidence to convict him without it.
But I don’t quite understand what you’re driving at with that point. The exclusionary rule would apply only to that which was obtained unlawfully. Information obtained through lawful channels is still permitted. Heck, there’s even an exception to the exclusionary rule that allows the evidence to come in, even if it was obtained illegally and/or unconstitutionally, if it would have been obtained anyway through legal means.
There could be any number of problems with the prosecution’s case. To automatically say that it’s because of torture is grasping. If the whole case was built around a coerced confession, then the government must let him go. However, if stress positions caused this guy to give up some critical information that proved more valuable than him, I say it was worth it.
The problem is, unlike the Nuremberg trials, which were open and public, these are done in super-ultra top secrecy, with only the word of the US government that everything was done above-board. And, frankly, the word of the US government doesn’t exactly engender a whole lot of trust in me these days.
Only waterboarded three people? I’ve got some oceanfront property in Arizona to sell you…
But I don’t quite understand what you’re driving at with that point. The exclusionary rule would apply only to that which was obtained unlawfully. Information obtained through lawful channels is still permitted. Heck, there’s even an exception to the exclusionary rule that allows the evidence to come in, even if it was obtained illegally and/or unconstitutionally, if it would have been obtained anyway through legal means.
Right. We torture him, he says “look in this house.” We go to the house, find intel, then say, “Well, we would have eventually looked in that house anyway.” It’s pristine ass-covering, and it’s not the way the process is supposed to work.
I’m not talking legal trickery and semantics here, I’m talking honor and integrity, something that there seems to be precious little of these days.
There could be any number of problems with the prosecution’s case. To automatically say that it’s because of torture is grasping. If the whole case was built around a coerced confession, then the government must let him go. However, if stress positions caused this guy to give up some critical information that proved more valuable than him, I say it was worth it.
I didn’t say it was automatically because of torture, but chances are with a case of this magnitude that if there was other sufficiently reliable information the case would proceed. Why would you drop charges against a guy in a case of this magnitude? Surely some minor defect wouldn’t stop them.
Your last sentence wouldn’t work because that same information would still be fruit of the poisonous tree. Once we say that stress position = torture, any information gotten from it would be susceptible to dismissal.
Now, if you’re arguing that we should still do some of those techniques to get information that will lead to other things (and thereby sacrifice convicting this individual in favor of getting more people), and argue that we should make an exception under those circumstances, well now we’ve looped around to arguing about what is torture, what is not, whether it’s reliable, etc. etc.
Only waterboarded three people? I’ve got some oceanfront property in Arizona to sell you…
Show us some proof. I noticed that this guy wasn’t waterboarded. He’s not even claiming it. What’s up with that?
Furthermore, I doubt that the use of the harsh interrogation techniques is why they aren’t proceeding. The Pentagon used techniques approved by their boss, the SecDef, which are legal Category II and III techniques.
It wasn’t “torture” that led to this decision.
Actually, “inevitable discovery” is a well-founded part of our legal system, as the fundamental solution to “fruit of the poisonous tree”. The burden is squarely on the prosecution to prove “inevitable discovery” (in civilian courts, anyhow).
No, you want us to obey the law. If you wanted him punished harshly, you would be for it no matter what the cost.
The guy is most likely guilty. The law provides for severe punishment. If our actions have subsequently fucked up our opportunity to legally and justly mete out harsh punishment it will be a sad day for all of us, especially all of you “we don’t torture” folks who have bought every administration sleight-of-hand to avoid the uncomfortable truth that the US has joined an ignoble list of nations which legally sanctions the use of torture.
It wasn’t “torture” that led to this decision.
Evidence?
Your last sentence wouldn’t work because that same information would still be fruit of the poisonous tree. Once we say that stress position = torture, any information gotten from it would be susceptible to dismissal.
Torture is illegal. Letter of the law. Category II and III interrogation techniques are not. This would not get the case dismissed.
The guy is most likely guilty.
Whatever happened to the ancient notion of “innocent until proven guilty”? It’s at least as sacred as habeas corpus.
Evidence?
The government isn’t going to claim that they tortured him and thus can’t proceed with the case, dwex. “Torture” is illegal. There’s another weakness in the case somewhere. His confession would be admissible for reasons I described in my previous two comments.
Show us some proof. I noticed that this guy wasn’t waterboarded. He’s not even claiming it. What’s up with that?
There are plenty of other ways to torture someone, not just waterboarding. Sleep deprivation, induced hypothermia, agonizing “stress psitions” (a.k.a. known as “barbaric torture” when the VC did it), the list goes on and on.
See? This is why we have rules. And when the rules are followed, we don’t run into these sorts of messes. The US could have taken the high road and led by example, but instead we sunk to the lowest common denominator.
There are plenty of other ways to torture someone, not just waterboarding. Sleep deprivation, induced hypothermia, agonizing “stress psitions” (a.k.a. known as “barbaric torture” when the VC did it), the list goes on and on.
That’s not what you said. You believe that we waterboarded more than three people. Who?
Whatever happened to the ancient notion of “innocent until proven guilty”? It’s at least as sacred as habeas corpus.
And I, unlike most of the rest of you, am willing to give him his fair and open day in court. Of course there will be exceptions to this due to national security reasons, but they need to be as minimal as possible, completely justifiable, and the entire process otherwise needs to be as open as possible, with cameras filming it, just like with Nuremberg. It’s the secrecy of the process which undermines its integrity.
That’s not what you said. You believe that we waterboarded more than three people. Who?
I have no idea. But I think it’s laughable that you actually believe administration bullshit when they claim they only waterboarded tapes. What about those CIA interrogation tapes which were mysteriously destroyed? I’m sure there was nothing incriminating on them, was there? It was probably the detainee and the interrogator having a quite snack of tea and crumpets while discussing contemporary world events.
I’m not talking legal trickery and semantics here, I’m talking honor and integrity, something that there seems to be precious little of these days.
I’m not arguing for a more expansive view of that doctrine, I was only talking about Thrill’s point that there may have been some other defect in the case. I don’t understand the basis for thinking there was still sufficient evidence to proceed in this case.
I will say I tend to agree with most of your viewpoint, but the issue isn’t that black-and-white. I completely understand why people would say that waterboarding isn’t torture (As I noted, the blurb you posted saw fit to include humiliation, as if I am supposed to be repulsed by prisoners being humiliated) if it does in fact lead to information that will save lives--let’s say the house in your example was building IEDs that they planned to use in the next few days. A lot of people think that the normal methods are too time-intensive. Whether that’s true or not, I don’t really know.
Now, for people who argue we should do those techniques for no reason and just to punish the people we catch, then I completely agree with you. But for most people, I don’t think their approval of waterboarding springs from a naked desire to harm.
Okay, it’s 3am. I’m hitting the sack.
It’s the secrecy of the process which undermines its integrity.
No secrecy would undermine its security. The Nuremburg Trials were different because the war was over and there was no threat of classified information being revealed to anyone.
Did the Nazi saboteurs in 1942 mentioned earlier have the press inside of their court-martial? Read up on it; you may be surprised.
But for most people, I don’t think their approval of waterboarding springs from a naked desire to harm.
I do. This is why the “oh, so you weep for the terrists” argument is always trotted out. If you don’t support torture then you’re a weak pussy who isn’t serious about fighting terrists.
It’s got much more to do with “screaming Arab” than it does legitimate intelligence gathering.
Thanks, Lee. This was just like old times! You still got it!
Torture is illegal. Letter of the law. Category II and III interrogation techniques are not. This would not get the case dismissed.
We’re talking a bit past each other because we’re conflating two separate things:
1) Whether there was torture in this case and whether that was the reason the proceeding has been halted;
2) Whether waterboarding and other techniques count as torture.
When I made my point, I was talking about #2, since the discussion was aimed at the idea that we’re doing is going to be seen as torture and therefore inadmissible. Sorry for the confusion.
Oh, I’m well aware of that. FDR ordered the tribunal, and the saboteurs were executed 8 days later. There was immense pressure in the SCOTUS to provide a unanimous decision so as not to undermine the president in a time of war, though many justices involved subsequently expressed their misgivings about their vote.
It was this case that Bush modeled his tribunals after.
I’d love to stick around, but my hands are killing me. I think I posted 100 comments in 10 hours. Time for a break.
Thanks to everyone for a spirited debate!
I do. This is why the “oh, so you weep for the terrists” argument is always trotted out. If you don’t support torture then you’re a weak pussy who isn’t serious about fighting terrists.
It’s got much more to do with “screaming Arab” than it does legitimate intelligence gathering.
I see the reason that line is trotted out not as an indication people want to see people scream for no reason but rather as an willingness to do some things that they don’t see anywhere near torture (and I think we can agree that waterboarding, whatever it is, is not on the same plane as more extreme forms of physical torture) for the sake of getting very valuable information. Now, for people who think we should do that in other circumstances or who want to do it for no reason, then I completely agree with you.
Do you think the people who support waterboarding would be using the same argument ("You weep for the terrorists") if we were sawing off their heads and sticking bamboo under their fingernails? I think you must believe the answer is “yes”. I don’t see that bare desire to harm in the vast majority of people who argue that waterboarding is OK.
I’d love to stick around, but my hands are killing me. I think I posted 100 comments in 10 hours. Time for a break.
Thanks to everyone for a spirited debate!
I didn’t comment, but I did enjoy reading !!! Enjoy your break !!!
Well, if everyone is taking a break I have no excuse to continue procrastinating on this assignment I’ve been avoiding. Thanks to you too, Thrill and enjoy (even though you’re probably reading this well after a break and are probably back at work or something!)
Of course there will be exceptions to this due to national security reasons, but they need to be as minimal as possible, completely justifiable, and the entire process otherwise needs to be as open as possible, with cameras filming it, just like with Nuremberg. It’s the secrecy of the process which undermines its integrity.
You can put yout mind at ease. All military tribunals will be filmed and broadcasted live to many military bases in the states so that family members of victims can monitor the proceedings.
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