Posted by: Jeff | November 16, 2009

The Uselessness of Torture

Michael Isikoff has been reporting on the behind-the-scenes efforts which went into the Justice Department’s recent decision to prosecute Khalid Sheikh Mohammed in criminal court:

Earlier this year, when justice Department prosecutors began trying to assemble a case against Khalid Sheikh Mohammed and four alleged co-conspirators for orchestrating the 9/11 attacks, Attorney General Eric Holder Jr. told them to make it airtight. “I cannot have a case that is not won,” Holder said, a senior Justice official tells NEWSWEEK. But the team agonized over one key question: how to prosecute the detainees without the trial being derailed by embarrassing disclosures about CIA “enhanced interrogation” techniques. For months, Justice officials say, they scoured case files for evidence “untainted” by rough interrogations or other “extralegal” methods. They were so nervous about torture allegations that they even decided against using confessions made to an FBI “clean team” that questioned the detainees after they were transferred from CIA custody to Guantánamo. The reason: prosecutors couldn’t be sure the FBI agents’ questioning wasn’t influenced by information they had previously gleaned from tough CIA treatment.

By last week, Holder and his deputies were confident they had succeeded, allowing the A.G. to announce that Mohammed and his cohorts will stand trial blocks from the former World Trade Center site. (Holder called Air Force One to inform Asia-bound White House officials of his decision, says the senior Justice official.) “There’s plenty of evidence outside of the torture stuff,” says another senior Justice official familiar with the decision who, like others interviewed, declined to be named talking about delicate deliberations. Among that evidence: wire transfers, phone records, computer files, and videos tying the defendants to the attacks.

Now, as the post goes on to point out, this does not make the trial risk-free for the Justice Department, the Obama Administration, or the CIA by any stretch. The defense will still have ample opportunities to bring the matter of torture into the proceedings, with the potential for political embarrassment for the government or even legal ramifications for the intelligence community. The CIA could still itself be “put on trial” as one official puts it. Of course, in my humble opinion, such a result would be a good thing.

But for our purposes here, I’d like to point out something different. And that is this: After completely stripping their case of all evidence acquired by – or even remotely connected with – the use of torture, the Justice Department still thinks they can deliver a conviction for Mohammed. Everyone got that? Even if we discount all of the evidence gleaned from torture, the case against these guys remains strong enough to secure a guilty verdict. After the godawful mess of the last eight years, torture has proven to be not only disgraceful, dishonorable and immoral, but unnecessary and irrelevant to trying the terrorists in question. So why did we do it, again?

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