Home Judge’s Opinions The Torturers’ Poor Memories

The Torturers’ Poor Memories

by Andrew P. Napolitano
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As the pre-trial hearings in the case of Khalid Shaikh Mohammed and others who are charged with masterminding the 9/11 attacks proceed at the Guantanamo Bay Naval Base in Cuba, the government continues to stumble with its own witnesses. In hearings last week, government lawyers tried to demonstrate that statements the defendants made to CIA and FBI agents were voluntary.

            When the government’s principal torturer, a now-retired psychologist, had difficulty recalling that during a torture session he threatened one of his victims by offering to slit the throat of the victim’s young son and that he had recounted that threat under oath in previous testimony, it became apparent to all in the courtroom and to those of us who monitor these awful proceedings that the government was encountering a strange and unexpected difficulty in defending the behavior of its torturers.

            Here is the backstory.

            Mohammed and others were violently tortured at various so-called CIA black sites outside the U.S. for about three years. They were raped, hanged by their wrists for weeks inside large refrigerators, beaten with fists and wooden boards, and waterboarded whereby water was forced into their nasal cavities so as to create the perception of suffocation and drowning. Many of the records of all this were destroyed by CIA officials, a crime for which no one has been prosecuted.

            During these horrific events, the torturer-in-chief, who was conducting his grisly business in Thailand, called a CIA lawyer in Langley, Virginia, and obtained permission to threaten his victim with slitting the throat of the victim’s young son. The torturer admitted this in testimony he gave in court at Gitmo in 2020.

            Why was the torture conducted in Thailand? Because CIA lawyers had erroneously told their bosses that the U.S. Constitution and federal law do not apply in foreign lands.

            This has never been American law. The common law of England and in America has always been that when government personnel leave the country for the purpose of doing something that is clearly unlawful in the country they have left, they can be held accountable for their criminal behavior when they return. The U.S. Supreme Court made this clear in one of its five major rulings against the George W. Bush administration over its behavior at Gitmo.

            Bush’s own White House counsel advised the president that because Gitmo is physically located in Cuba, the Constitution doesn’t apply, federal laws don’t apply and federal courts lack jurisdiction. All of this erroneous advice was tailored to tell Bush and Vice President Dick Cheney who, according to former CIA personnel, had a particular fondness for torture, just what they wanted to hear.

            This terrible legal advice became the stated legal basis for the torture regime and the proposed but never implemented kangaroo courts at Gitmo, until the FBI entered the scene and put a stop to the torture and the Supreme Court entered the picture and required real trials.

            However, in protecting the rights of these defendants — the Constitution protects all persons who have contact with the government, not just citizens — the courts have overlooked the right to a speedy trial. It is this salient failure that was manifested last week when the chief torturer “forgot” that he had already admitted under oath to threatening to slit the throat of his victim’s young son.

            The lack of a speedy trial and the government’s cavalier attitude about it also were made known last week when the lead FBI investigator involved in the post-torture interrogations at Gitmo asserted 199 times in one day under oath that she could not recall what she saw and heard 20 years ago during interrogations in which she participated.

            Here is the government’s problem: When the government plans to use the defendant’s own words as evidence against him and the defense counters that the words were extracted under or due to torture, the government must prove beyond a reasonable doubt and to a moral certainty — the highest standard of proof in American law, the same standard for proof of guilt in criminal cases — that the words were uttered voluntarily.

            The court is addressing two categories of words — those articulated during torture, and those articulated afterward. Defense and government psychiatrists agree that victims of prolonged torture will say what they think the questioner wants to hear long after the torture has ended, just as victims during torture will say what they think the torturer wants to hear.

            Yet, when the torturers have forgotten what they heard or said when they have intentionally or negligently destroyed records of the torture, they have made it nearly impossible for the government to prove voluntariness beyond a reasonable doubt.

            Evidence extracted during or from torture is inadmissible in all American courts, civilian and military. Torture is criminal under federal law and all 50 states’ laws, no matter its purpose or its location. Government lawyers are not permitted to whitewash torture without confronting serious ethical consequences.

            The Bush/Cheney torture regime and its Devil’s Island at Gitmo are among the darkest events perpetrated by a modern American presidency. Far from preserving, protecting, and defending the Constitution — as Bush and Cheney both swore to do — by destroying the free will and personhood of their victims, they have undermined the values upon which the Constitution is based.

            Those values are articulated in the Declaration of Independence and in the Constitution’s Ninth Amendment. Taken together they reflect the unanimous public understanding of the revolutionary generation — those who fought the war for independence and those who crafted the founding documents — that our rights are natural to our humanity, they are indefeasible, and they are permanent. And the sole purpose of the rule of law is to protect our rights.

            Why do we repose the safekeeping of our rights into the hands of those who destroy them?

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