JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says the claimed "suicide" in a Libyan prison of al-Qaeda operative Ibn al-Shaykh al-Libi is too convenient for too many people who have besmirched American honor in a perversion of rule of law that came from panic and improvisation.....
For those who only vaguely remember al-Libi's name, al-Libi is the al-Qaeda person picked up at an al-Qaeda training camp in Afghanistan and extraordinarily rendered to Egypt to be tortured at the United States behest. Al-Libi is the one reported to have linked al-Qaeda to Saddam Hussein in a false confession that was the result of this torture that Saddam Hussein was training al-Qaeda in bomb making, poisons, and deadly gases. President Bush used this "evidence" in a speech on October 7, 2002 in Cincinnati in his push to get Congressional approval of the resolution authorizing the President to go to war in Iraq. Al-Libi later disavowed that "evidence," but by then we were in Iraq. When the al-Libi torture was revealed, the comment was made that the people at the highest levels of the U.S. government (Condi Rice and Dick Cheney) did not doublecheck this "evidence" but took it at face value. Why? Because, this false confession was consistent with their vision of the world.
As former Vice-President Cheney continues his "torture apology tour" asserting that "torture works" in the way the French General Massu defended the torture he ran in Algeria during the Algerian War (nothing new under the sun for anyone with a memory), it is clear that the al-Libi case is a difficult one for these apologists for torture. Al-Libi's false confession that was exploited as propaganda to lead us into the Iraq War confirms to us that torture works only in the sense that it breaks the person tortured. As has been repeated so many times, a person tortured will say anything to get the torture to stop. Tying al-Qaeda and Saddam Hussein in a false confession was al-Libi's way to stop the pain.
But to have al-Libi say that in giving evidence in a criminal prosecution would be terribly inconvenient for many present and former operatives and members of the United States government. After all, al-Libi's words found their way into former Secretary of State's Colin Powell's infamous presentation to the United Nations in the run up to the Iraq War.
In what had happened in his body and mind, al-Libi truly was the "man who knew too much." That is why it is totally appropriate that Human Rights Watch has called for an investigation into the circumstances of his "suicide" in a Libyan prison. It is clear that having al-Libi truly disappeared is too convenient for too many people who have besmirched American honor in a perversion of rule of law that came from panic and improvisation.
Let us fully investigate how good old Muammar Gaddhafi got al-Libi into his prison system from CIA detention and what were the circumstances of al-Libi's death. It smells of the "car accident" or "fell out the jail window" type of deaths that dissidents have had in other countries in Africa. Except this time, the person is an encumbrance from lawless leaders of America, not some tin-pot dictatorship.
If we insist, they will prosecute these lawless leaders. We need to insist. I am tired of the dithering and I am tired of these thinly veiled efforts to make evidence disappear and people disappear to hide their tracks. Bring light. Bring light and let the chips fall where they may.
Let us be clear. At 53 years of age, I simply never imagined I would have to write these kinds of things to Americans about torture by our government in my life. Torture under guise of "we do it to our soldiers in training" is torture. That torture is not just waterboarding, but the full panoply of actions that we are learning has been done to people in our names. Bring al-Qahtani out of his hole in Gitmo and let us see the before and after footage on him in case you doubt he was tortured. Moreover, an alleged common law defense of necessity as recently suggested by an author here would at best be very narrow. It is not the kind of broad necessity doctrine that would have the effect of making torture legal because someone can argue necessity. It does not work that way. Moreover, our treaty law would trump mere common law and thus such a defense.
They are grasping at straws (but they are powerful). Please stop the nonsense by high-level civilians and generals desperate to avoid prosecution. It is time they take the fall and not the grunts who did their bidding. Keep our honor clean.
Benjamin Davis is a professor at the University of Toledo College of Law