JURIST Special Guest Columnist Shayana Kadidal, senior managing attorney of the Guantanamo project at the Center for Constitutional Rights, says that the timing of military commissions convening authority Susan Crawford's admission in the last days of the Bush administration that a Guantanamo detainee he represents was tortured should not be allowed to open the door to a "preventive detention" scheme for prisoners who supposedly can be neither released nor tried...
It's a significant concession, coming from a Bush administration official, because it confirms that techniques that when used singly might fall short of the administration's old definition of torture (methods creating pain "equivalent to organ failure or death") can still, when used in combination over log periods of time, constitute torture. Not "enhanced interrogation techniques," not "a little dunk in the water" but torture, condemned by international law and by the laws of every civilized nation on earth. Torture: exactly what the administration always insisted it never did.
Crawford made her admission by way of explaining why military commission charges were dropped against our client this summer. But it will also be relevant in the habeas corpus cases challenging the continued detention of the 220+ detainees who haven't been charged with any crime and will likely never be. Innocence, not torture, is the reason most of these other detainees will never be charged. But the stain of torture is going to rapidly shrink the body of evidence the government can use in court to trump up reasons to keep holding these men. The kind of abuses Al Qahtani suffered sleep deprivation and isolation in solitary confinement were commonplace at Guantanamo. Just this week a former prosecutor said the 'frequent flyer" program of sleep deprivation was in common use thru 2005, and two new solitary confinement facilities have been in operation since 2006. The two primary torture techniques used on al Qahtani were used on the vast majority of detainees; al Qahtani's case was unique only because of how well documented the abuse was, and how closely supervised from Washington. Crawford's admission presages that the results of many interrogations under torture will be thrown out as the habeas cases progress in the weeks to come.
With so much to lose, then, what did the administration have to gain from making this admission now?
It's pretty clear what their intent was: to turn our client into the poster boy for a new "preventive detention" law under which men like him could be held forever without charges or trial, a Guantanamo 2.0 specifically for people "too dangerous to release but who cannot be tried."
What the ticking time bomb is to the torture debate, the "too dangerous to release but can't be tried" hypothetical detainee is to the preventive detention debate. Let me elaborate. The Ticking Time Bomb hypothetical asks us to stipulate a whole series of conditions that could never exist in the real world, where there are limits to human knowledge: that we know with absolute certainty that the person we have caught is the right person, that he really has a bomb planted somewhere, that the only way to get the information about it out of him is torture (i.e. that torture will work, and that nothing else will work). In the real world, torture never works, and none of the other things can be known with anything approaching certainty. The "ticking time bomb" is a false problem inviting a false solution (torture).
So too is the "too dangerous to release but can't be tried" argument for preventive detention. First, "can't be tried" is a rarity: in the real world, there are hardly ever situations where excluding torture evidence leaves no evidence whatsoever available to convict a criminal conspirator on any charge. In the real world, those cases are likely to be very rare: if the government has the facts right, there will usually be many other sources for them besides dubious confessions. In theory, one could imagine a case where there may be no evidence against a military commission defendant that was not procured through torture. But every civilized legal system in the world rejects evidence procured by torture not only because accepting it would be immoral, but also because it is unreliable. If there is no evidence other than torture evidence behind an accusation, then there is no trustworthy evidence, period.
Beyond that, flexibility in charging decisions means that there are often lesser charges proved with different evidence that can be brought think Al Capone finally getting put away for tax evasion.
What about the "too dangerous to release" part? As an initial matter, our system has never allowed the government to detain people (with limited exceptions, including for example the criminally-dangerous mentally ill) based on a prediction that they may pose a danger to the public. But putting centuries of Anglo-American legal tradition to one side, how is someone like Al Qahtani supposed to pose a danger to the public? He's denied the allegations against him and recanted everything he said under torture, and the government has dropped all charges against him. He was never even alleged to be a planner; quite the opposite. His home country, Saudi Arabia, has a highly successful custodial rehabilitation program into which Al Qahtani could be sent. Once he was graduated from that program, as with anyone released to freedom, nothing would stop the authorities from watching over him within the limits of the law if they deemed it wise.
Apart from the facts of this one case, as a general matter, even active members of terrorist criminal conspiracies who roam free only pose a danger if law enforcement doesn't know who they are. Once a suspected conspirator is on the authorities' radar screens, he becomes exponentially less dangerous law enforcement can tail him, wiretap his phone, infiltrate the criminal enterprise, making sure he doesn't execute his plans while also letting him lead you to the rest of the conspirators. The standard law enforcement playbook on investigating criminal conspiracies (be they involved in terrorism, drug dealing, or other organized crime) says that you treat the first suspect you find as if he were the tip of an iceberg, and, instead of detaining him immediately, you direct more investigative resources at him. On the battlefield you arrest the enemy at first sight. But that "war" mentality doesn't work well at the painstaking process of investigating terrorist conspiracies--it causes you to lose the sunken part of the iceberg. The known conspirator is an asset to law enforcement while he is free; he ceases to be as useful once he is in custody. From law enforcement's perspective, this is the very best argument against preventive detention as policy.
Every street cop in America knows this, because they all have experience investigating drug conspiracies. Will the best and the brightest of the new administration understand it in time to resist the conspiracy among the defeated forces of the right to use their own admission of torture to promote "preventive detention"?
Shayana Kadidal is senior managing attorney of the GuantÃ¡namo project at the Center for Constitutional Rights.