It has been clear for years that the Bush administration's decision to torture captured Al Qaeda terrorists leaves the United States in a wretched position when it comes to determining the prisoners' ultimate fate.
No American court ever is going to allow the admission of confessions or evidence obtained by torture. Thus, despite the federal judiciary's flawless record of dealing firmly and equitably with cases of domestic and foreign terrorism, the Bush/Cheney White House made sure that trying these criminals would be hideously difficult. That's why it cobbled together a dubious system of "military commissions," simply ignoring the fact that the verdicts of such tribunals were unlikely ever to enjoy the international legitimacy crucial in these cases.
President Obama came to office promising to end torture, close down the secret prisons in which it occurred and send the Al Qaeda terrorists — including Khalid Shaikh Mohammed, the self-proclaimed 9/11 mastermind and boastful murderer of journalist Daniel Pearl — into federal court, where they belong. This week, we saw just how difficult that process will be and, more disturbing, how ambivalent the Obama administration really is about the process.
Early in the week, federal officials were congratulating themselves over the life sentence imposed on Faisal Shahzad, the Pakistani-born American citizen who pleaded guilty to 10 terrorism and weapons charges stemming from his failed attempt to explode a car bomb in Times Square. But on Wednesday, those same officials seemed stunned when U.S. District Judge Lewis A. Kaplan barred testimony by a key government witness in the case of another accused terrorist, Ahmed Khalfan Ghailani, who allegedly organized the 1998 bombings of the U.S. embassies in Kenya and Tanzania, killing 224 people. Ghailani was apprehended in Pakistan in 2004 and then — for five years — held in secret CIA prisons, where he was tortured. Kaplan ruled that a man who says he sold Ghailani the explosives cannot be called to testify because the government learned about him from interrogating Ghailani, and the government is known to have "coerced" testimony from Ghailani.
Kaplan wrote that although he was "acutely aware of the perilous nature of the world in which we live … the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction." It's a handsome sentiment, but Kaplan then went on in an apparent — and probably fruitless — attempt to inoculate himself against criticism that even if Ghailani is acquitted, his status as an "enemy combatant" will allow the government to hold him in military custody forever.
Atty. Gen. Eric H. Holder Jr. previously expressed a similar belief about the Shaikh Mohammed case.
There are names for trials with predetermined outcomes, and none of them is pretty.
Jack Goldsmith, the conservative legal scholar who so courageously braved the displeasure of the Bush/Cheney White House when he served as head of its Office of Legal Counsel, wrote that all this makes him "wonder why the government is bothering to try Ghailani.... It can hardly bring the hoped-for legitimacy benefits if the government and the judge publicly agree that the defendant, if acquitted, will remain behind bars indefinitely."
Former federal terrorism prosecutor Anthony S. Barkow, now a professor of law at New York University, told an interviewer that Kaplan's ruling and Holder's position on it "create a suggestion of a kind of show trial as opposed to a true adjudication of the issues."
In his most recent book, "Obama's Wars," Bob Woodward recounts a conversation that occurred between outgoing CIA Director Michael V. Hayden and Leon Panetta, his successor.
" 'I've read some of your writings while you've been out of government,' Hayden said. 'Don't ever use the words CIA and torture in the same paragraph again.... Torture is a felony, Leon. Say you don't like it. Say it offends you. I don't care. But just don't say it's torture. It's a felony.' The Justice Department had approved what the CIA did in long, detailed memos, so — legally — the CIA had not tortured anyone."
It would be a tragedy if the Obama administration steps back through that looking glass. It cannot have things both ways when it comes to the rule of law and national security. It cannot have the legitimacy constitutionalism confers and the illusionary certainty that Bush's delusional authoritarianism seemed to create.