Magazine article Newsweek

Getting Away with Torture

Magazine article Newsweek

Getting Away with Torture

Article excerpt

Byline: Dahlia Lithwick

Legal maneuvering has shielded those responsible for conditions at Guantanamo Bay.

Our "terror trials" aren't working. The prosecutions of a fistful of prisoners at Guantanamo Bay--just getting underway after more than six years--are barely moving forward. Evidence is flimsy and stale. Prisoners claiming to have been abused and subjected to involuntary use of drugs are refusing to participate in their trials. There may yet be verdicts at Guantanamo. But following years of abuse, neglect and secrecy, there won't be justice. The other place we won't see legal accountability is at the upper levels of the Bush administratiom, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantanamo. But both the tribunals at Guantanamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.

Outside the Bush administration, there is bipartisan agreement that Guantanamo should be shut down and the military commissions scrapped. A compelling case could have been made for Nuremburg-style trials for some of the prisoners there--including Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA admits Mohammed was waterboarded, rendering his confession unreliable and any conviction a sham. And even if we do convict this handful of terrorists at Guantanamo, there still remain almost 300 detainees at the base, held there for years without charges. Some were turned in by Afghan captors for bounties. Some are held as a result of coerced testimony from others.

Full and fair trials might have happened for enemy combatants, but missteps have led to a legal process that now exists solely to prove the detentions were justified; that the captives are--as former Defense secretary Donald Rumsfeld once called them--"the worst of the worst." That's a political conclusion, not a legal one, and it's why Col. Morris Davis--former chief prosecutor for the military commissions at Guantanamo--resigned last fall, claiming political interference had created the impression of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "[w]e can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We've got to have convictions."

Bad evidence, tortured testimony, delay, error, guilty prisoners jumbled up with merely unlucky ones and the necessity of politically motivated convictions. But politics won't keep just the Gitmo prisoners from seeing justice. …

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