Justice-American style

Major Jason Wright, one of the military’s judge advocate generals assigned to the team to defend Khalid Sheikh Mohammed, one of the prisoners at Guantanamo, has quit the military saying that those tribunals have become heavily stacked against the defendants and now are little more than show trials and that the government has gone to extraordinary lengths to keep its torture practices secret and to deny the prisoners the basic legal rights to a fair trial, such as secretly recording the conversations between attorney and client..

Wright says Mohammed in particular has faced a level of torture “beyond comprehension.” He says his client was waterboarded by the CIA 183 times and subjected to over a week of sleep deprivation; there were threats that his family would be killed. “And those are just the declassified facts that I’m able to actually speak about,” Wright says.

“The ‘original sin’ being the fact that the CIA tortured these men and that they’ve gone to extraordinary lengths to try to keep that completely hidden from public view,” Wright says. “So the statute that Congress passed has a number of protections to ensure that no information about the U.S. torture program will ever come out.”

“So not only do you have statutory design, but you actually have, in practice, a very large effort to try to ensure that no ensure that no information about torture is ever made known in public,” he says.

The hardest thing to deal with as a defense layer, he says, is fighting the government’s influence.
“The U.S. government is trying to call this a fair trial, while stacking the deck so much against the defense and the accused that it can hardly be called a fair trial in any system in the world,” he says.

The larger strategic implication for the government, he says, is that it gives a license for the rest of the world to torture and “set up secret military courts outside of public review and outside of due process.

“Leave aside our constitutional principles — which we should try to uphold irrespective of who the defendant may be — the Constitution has been completely stepped on throughout this entire process,” he says. “That’s a separate and distinct issue of how the U.S. now has shown just abhorrent leadership when it comes to actually following essential, fundamental human rights and due-process guarantees.”

Wright says it doesn’t matter what happens at trial; the government likely won’t release the defendants even if they are acquitted. He contrasts it with the Nuremberg trials after World War II, where the chief prosecutor promised Nazi war criminals would be set free if they weren’t found guilty.

“We have a system where if someone’s acquitted, they will not be set free,” he says. “That is actually the very definition of a show trial.”

We now have reports that the members of ISIS tortured reporter James Foley using waterboarding. Both Foley and another beheaded reporter Steven Sotloff were both paraded in orange jumpsuits, the uniform of Guantanamo, before they were murdered. Clearly these were deliberately done to show up US practices. Of course, people who are willing to behead people and brag about it do not need the excuse of US government precedent to practice torture or kill people. But the more disturbing consequence is that US government policies of torture and show trials have made its claims of upholding human rights and due process and the rule of law increasingly hollow and will give license to repressive governments around the world to adopt the same practices and shrug off US protestations.

The whole world now knows that the US practices torture and protects torturers. The US can go some way towards recovering some stature if, even at this late stage, it comes clean about what it has done and takes action to punish those who did these things and takes steps to prevent their recurrence. But that seems unlikely, at least under the Obama administration, which has been fighting tooth and nail to keep secret even the sanitized US Senate report on the CIA’s torture practices.

Charlie Pierce says that he hopes someone will leak the entire US Senate report on the CIA’s torture practices and not let the CIA succeed in releasing just a sanitized version and appeals to someone who has access to the full report to leak the whole thing.

Please, somebody, goddammit, just leak the damn report. All of it, CIA concerns be damned. Because now not only do we have a moral right and a moral duty to know everything that was done in our name, but we also have a national interest in determining to what extent the behavior of our government differed from the behavior of ISIS, besides the fact that (as far as we know) none of our captives were beheaded. That’s a pretty low bar for an evolved democracy, but there it is. I no longer care about phantom “national security” concerns. Fk the torturers and fk their enablers in Congress, and fk all redactors, and fk the pet lawyers and bureaucrats that made torture legal and acceptable. Let what’s going to happen to them happen. Let justice be done though the heavens fall and John Yoo loses his job. They opened the door to this, with their memos and their barely stifled giggles. They grafted sadism onto the Constitution. They taught ISIS its techniques. James Foley, a fellow Warrior, god rest his brave soul, was tortured before he was murdered using techniques that barbarians learned from the oh-so-civilized heroes of our National Security state. This is what we teach the world now. Are you guys proud? Does your heart swell in the faculty lounges and in the cozy think-tanks? Does it swell with pride at the impact you’ve had on the world?

Now even a federal judge Alvin Hellerstein, who had said in 2010 that the government could suppress information about torture tapes and memos and in 2011 refused to hold the CIA in contempt for deliberately defying a court order and destroying evidence in the form of the torture tapes, seems to have had enough. He has indicated in a ruling last week that, following another hearing on September 8, he may agree with the ACLU that more Abu Ghraib torture photos should be released.


  1. Rob Grigjanis says

    Omar Khadr has first hand knowledge of American, and Canadian, justice. Railroaded by a military court into a plea settlement, then called a ‘convicted terrorist’ by the Canadian Justice Minister.

  2. lanir says

    We certainly have a very strange approach to what we’re calling justice these days. The reason there’s so much resistance to changing it is very understandable though. I don’t think it’s possible to casually move away from these sorts of things. To slowly change behavior for the better. I think it requires a sharp break and no one wants to be among those exposed when it happens. The waters have been deliberately muddied to the point that I doubt we’ll ever get real justice done around anything related to Guantanamo or the US torture programs outside of a few sacrificial pawns at some point but at the very least it would be encouraging for the future if we were trying to get away from this. If there were some sense of shame and wrongness associated with it. That there is not makes me think the whole torture mess could start up again at any time. Or maybe never stopped.

    I suspect a lot of Americans will think this can’t and won’t affect them but I do look at this and think of the militant policing of Fergusson, the blatant attacks against the Occupy movement, the way some local police turn into highwaymen and steal cash for their county from out of towners with fake drug accusations (and get away with it because it costs more to object and get it back), the bizarre pandering to white gun fanatics that goes on, and the way prosecutors game the legal system by stacking accusations and making an actual court case too expensive so they can have a free hand designing a plea deal and I wonder what does this whole picture look like? What’s really going on here?

  3. Dunc says

    I wonder what does this whole picture look like?

    It looks a hell of a lot like a South American banana republic from the 1970s.

  4. Lassi Hippeläinen says

    “Leave aside our constitutional principles — which we should try to uphold irrespective of who the defendant may be ”

    I’m not an expert on your constitution, but AFAIK the Bill of Rights doesn’t require US citizenship. That would have been pretty inconvenient when a large proportion of the population had not yet been naturalized.

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