Coercion Is Not Torture

by Andrew C. McCarthy

I empathize with commentators on legal matters. There usually isn’t enough airtime or print-space to explain adequately complex issues. So commentators naturally take shortcuts. Often, the shortcuts do a real disservice. That is consistently happening in the Ghailani coverage, in which experts are conflating two very different things: coercion and torture.

The issue comes up because Ghailani’s confessions were not offered into evidence and a key witness identified during interrogation was not permitted to testify. Ghailani was subjected to enhanced interrogation tactics by the CIA in 2004. He repeated what he’d told the CIA to the FBI under the latter’s gentler questioning methods in 2007. Commentators are saying that the witness was barred and the confessions were not introduced because Ghailani was “tortured.”

This is not true. It is also a slanderous allegation, and I’m surprised to hear normally careful people throw it around so casually. Torture is a crime with a specific definition in law, involving the infliction of severe pain and suffering. We don’t know exactly what was done to Ghailani, but we have heard he wasn’t waterboarded. Waterboarding was the tactic closest to torture, and it was used on three detainees by the CIA. But under their fastidious guidelines, it clearly did not meet the legal test for torture. That’s undoubtedly why the Obama Justice Department has never prosecuted anyone over it, despite ceremoniously reopening torture investigations against the CIA. In any event, while we can stipulate that Ghailani was made very uncomfortable, there is no colorable evidence that he was “tortured” in the legal sense of that term.

On the other hand, you don’t need to torture someone in order to make his statements inadmissible. Nor do you need to conclude (as Judge Kaplan and the Justice Department seem to have concluded) that an alien terrorist is vested with a Fifth Amendment privilege. A coerced confession may not be used against the person who makes it because the Western notion of what a trial is would not abide such a thing. That is, a trial is not a trial if the state forces a person to testify against himself by physical or psychological intimidation.

You don’t need to torture someone to cross that line. Coercion will do. In fact, in the civilian system, the mere failure by police to give Miranda warnings is enough for courts to deem any resulting statement the product of coercion and, therefore, bar it from being used as trial evidence.

Commentators should stop saying Ghailani was tortured. I appreciate that many people disagree with me about whether it was appropriate for the CIA to use aggressive questioning methods in order to obtain life saving intelligence in the aftermath of 9/11. But we can agree to disagree about that without labeling what the agency did “torture.” That is a very weighty allegation, and in Ghailani’s case at least there’s no reason to believe it is true.

Coercion, yes – and that’s why Ghailani’s 2004 confession was not (and should not have been) offered into evidence. As I indicated yesterday, I think the witness identified during the interrogation should have been permitted to testify – but that’s another story. The point here is that coercion is not torture. What happened in Ghailani’s case was coercion.