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.
I cringe when I hear news anchors (never mind commentators) say"torture" when referring to Ghailani. Marine boot camp (1969) was worse than anything this clown went through.
Reply to this commentLinkReport AbuseThanks, Andy, for bringing this clarity to this issue. Now...somebody tell the simpletons at the BBC, which has been endless in their derogation of the U.S. government in this trial, taking every opportunity to label the interrogation of Ghailani as "torture".
Reply to this commentLinkReport AbuseA confession given in the absence of the Miranda warning is not a coerced confession. There is an abundance of law that says a confession given to foreign entities, without the warnings, outside of the United States, is admissible as long as the circumstances surrounding taking of the confession do not "shock the conscience" of the court. Miranda is a construct invented by the Warren Court to protect supposedly weak defendants from giving evidence against themselves in contravention of the 5th Amendment. It doesn't have anything to do with coercion unless you count asking a question as coercion.
Reply to this commentLinkReport AbuseIt is torture. You can spin it any way you like, it's still torture. I could get a confession out of you in a matter of seconds. When you torture people you make it very difficult to prosecute them. You seem to dislike the word torture, not the act of torture.
Reply to this commentLinkReport AbuseCan anyone be sued for calling it "torture"? I read an LA cop was falsely accused of discrimination in giving a speeding ticket; he sued the lady he'd ticketed and won.
Reply to this commentLinkReport Abuse"Commentators should stop saying Ghailani was tortured."
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But they won't; it serves the narrative purpose of those who would cripple our ability to fight terrorists.
Washington Post editorial today says that Ghailani's lawyer CLAIMED he was tortured, and the Post editorial accepts that as gospel when they write, "...[military] commissions are not apt to admit statements coerced through torture, so the star witness rejected by a federal judge probably would have been excluded by the military court as well."
Say it often enough and it becomes the truth, in the public's mind.
Reply to this commentLinkReport AbuseThe difference between you, Andy McCarthy, and them - the ones who insist on using the "T" word - is that you are intellectually honest.
Reply to this commentLinkReport AbuseWhylie, so you could get me to "confess in a minute." Bring it on. I'm pretty sure I've had my butt kicked by better people than you.
Reply to this commentLinkReport AbuseAnyone who throws around the term "torture" should be asked to give their definition of it -- not a listing of techniques they feel to be torture, but a one sentence definition which applies in every situation. I developed mine many years ago and it still holds up. I have never been able to get that definition from any of the people who use the term most freely.
It's more interesting when you speak of waterboarding. Ask those against the procedure if they're against any procedure which works on the limbic system. They inevitably answer "Of course!" Then you can tell them they have just consigned to death the hundreds of people treated in emergency rooms every year for racing hearts -- who are now being saved by a massage technique which slows the heart rate without causing damage.
Reply to this commentLinkReport AbuseWhylie, thank you for your reasoned and cogent analysis of the intricacies of the U.S. legal definition of torture, and your analysis of Ghailani's interrogation, in which you display so much knowledge of exactly what was done to him.
"It is torture." It is! It is! Said with sufficient stamping of the foot, how can anyone fail to be convinced by such an erudite explication of the situation?
Reply to this commentLinkReport AbuseMary Mac, what is your definition of torture?
Reply to this commentLinkReport AbuseNote the cheap, disingenuous argument of self-appointed anti-torture champions such as whylie. They complain about prosecutions being made more difficult, as if their desire is to prosecute more successfully. No, their real desire is perfecly transparent: they are desperate to appear morally superior. Utopian ninnies must be elbowed aside, while the adult business of preserving liberty proceeds.
Reply to this commentLinkReport AbuseI think you're right about bandying the term "torture" about, but I think you're also very wrong about the law. You stated:
"Torture is a crime with a specific definition in law, involving the infliction of severe pain and suffering . . . . Waterboarding was the tactic closest to torture . . . under their fastidious guidelines, it clearly did not meet the legal test for torture."
Torture is definitely not specifically defined (otherwise, why seek legal memoranda on the issue before waterboarding?). The statute was ratified by the Senate with language that made the difference between torture and inhuman or degrading conduct deliberately obscure (e.g., "prolonged" suffering and "severe" anguish). Really--check the Congressional Record, that's why it's there. Thus, summarily decreeing that waterboarding is not torture is pretty slipshod for someone on National Review.
Reply to this commentLinkReport AbuseIt was torture all right, but what I wonder about are all the people who want to call it something else. Like, what are they covering up?
Reply to this commentLinkReport AbuseWhylie,
Yours is a non-argument. "It" is torture - What is "it"? What do you know about how this suspect was interrogated? How do you define torture? Is your definition of torture consistent with that which is outside the laws on the book?
Of course, none of these questions have an answer in the illogical, emotive world you and your likes live in. You are merely trying to appear virtuous - not by your own actions, mind you - but by labeling those of others, turning your nose up and spitting out sentences.
Cab404 is right, and it's time we all understand that. Those that can't be reasoned with must be merely elbowed aside. Let adults be in control of our National security, for the love of Pete.
Reply to this commentLinkReport AbuseUN CONVENTION AGAINST TORTURE
and Other Cruel, Inhuman or Degrading
Treatment or Punishment
External Link
For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Note: America signed the UN CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment
in 1988
(That means Reagan signed it)
External Link
Note that the Convention includes Inhuman or Degrading Treatment or Punishment, not just violence.
So for example, even the fact that the prisoners were bombarded by endless very loud music counts as being against the Convention.
So, too bad Reagan isn't around now to remind his followers that they are wrong about torture.
Reply to this commentLinkReport AbuseThe UN Convention on Torture is another example of a treaty the US should never sign onto. The inclusion of the words, 'degrading, intimidating and coercive' in Part 1, Article 1, Para 1 of this treaty should not be grouped in with the use of the word, 'torture.' Reference your Webster's. By definition then, we aren't to capture an enemy combatant or terrorist or even arrest a criminal. Insofar as the act of being captured by an armed force or arrested by law enforcement officers are by their nature degrading, intimidating and coercive, the document's use of these words negates any and all forms of national military defense or even domestic law enforcement. Hence, anarchy. Is that the intent of this convention's proponents? I seriously doubt it was President Reagan's. I am disappointed to learn Reagan let this language slip by his otherwise assiduously observant eye without striking the words from the document. If the elite Left is clever enough to divine the real meaning of our Constitution, I'm sure they are clever enough to label Part 1, para 1 of the UN Treaty as vague and in need of their supeior skills at clarifying for the sake of we folks not nearly so gifted.
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