Let me begin with an outrageous position for any lawyer - let alone one who once specialised in criminal defence. I believe that Khalid Sheikh Mohammed (KSM) is guilty of conspiracy to murder 2,977 people in, and over, the US on 11 September 2001. What is much more outrageous is that the US, by its treatment of him, has foresworn any chance of legitimacy for the process of his prosecution and punishment.
You cannot opt in and out of human rights. KSM was subject to simulated drowning 183 times. He was kept naked, held in stress positions and ‘insult slapped’. Jose Rodriguez, the CIA officer responsible for the ‘enhanced interrogation techniques’ applied to KSM, made no secret of the treatment: ‘It was the cumulative effect of waterboarding and sleep deprivation and everything else that was done that eventually got to him.’ Rodriguez is so unrepentant that he has even published a book about his experiences, Hard Measures. We may note, however, that he was also the guy who took care to destroy the 92 tapes of the interrogation of KSM and another suspect, Abu Zubaydah. What they showed, he admitted, was ‘not a pretty sight’. This is unsurprising. A US lieutenant more than a century ago summed up the terrifying results on an unfortunate victim: ‘His sufferings must be that of a man who is drowning, but cannot drown.’ For all the obfuscation of president Bush’s lawyers, this was torture.
Mr Rodriguez believes that his team’s treatment of KSM and his associates was a big success and disrupted up to 10 major attacks. Oddly enough, even he admits that pain could not be entirely successful. After all, KSM took all they could give him but never gave up his boss: ‘There is a limit… to what they will tell us,’ he admitted to CBS News. Actually, KSM gave more information to FBI agents using conventional interview techniques than he ever did to the CIA. His treatment has raised all sorts of doubts over his admissions – among them the personal slitting of the throat of US journalist, David Pearl. Is he covering for others? Did he admit to stop the pain? These doubts disturb not only lily-livered liberals but hard-bitten FBI interrogators who regard the CIA squad as goons out of control.
Judge Pohl, in charge of the military commission that arraigned KSM and five others, struggled to suppress talk of torture. He tried to keep to the commission’s brief. This is to hold a trial which will be fair in all respects except that no one will be able to mention torture on the one hand or, on the other, any evidence adduced through its use. The US government clearly believes that there is enough untainted evidence against KSM and his co-defendants to convict. I think it is probably right. The difficulty is that the defendants have absolutely no interest in playing ball with a process which they reasonably fear will end in their execution.
They obstructed their most recent court hearing in an imaginative range of ways from insisting on the personal attendance of translators to demanding prayer breaks. Judge Pohl sighed: ‘Why is this so hard?’ It is so hard because you cannot cure the taint of torture by an overlay of legal process. As propaganda, this is hopeless. The trials are going down particularly badly among public opinion in the Middle East. Arab News, for example, called it ‘a farce reminiscent of the trial of Saddam Hussein’ and went into a rather literate analogy with Lewis Carroll’s Queen of Hearts, whose justice amounted to the cry of ‘off with their heads’.
The show trial has a long history and we know what success in this difficult dramatic genre requires. You have to induce the participation of the defendant. You need someone who really wants to get off - Sir Walter Raleigh or Charles Stuart; one who accepts conviction with panache - Sir Thomas More; or abject subjection to the superior will of the state, as in Stalin’s later contribution to the art form. Defendants who do not recognise the court and question the legitimacy of the process ruin the whole effect.
To be fair, president Obama has been caught between a rock and a hard place with these trials. He probably just wants them over as an administrative coda to the war on terror that he inherited, rather than seeking to impress the world with US justice. After all, congress prevented him trying the suspects in the civil courts of the US and forced him to use these military commissions which, try as Judge Pohl might, are obvious targets for scepticism.
Post-conflict justice is often messy. Churchill famously preferred no pretence: the Americans drove the Nuremberg trials. But this was not quite the sanctified process that history sometimes recounts - as nicely demonstrated in the 1961 Hollywood film recently shown by Justice, Judgment at Nuremberg: many defendants were randomly chosen; the sentences variable and the process abandoned as soon as the Cold War got going.
Torture is a breach of human rights - article 3 of the European Convention, article 7 of the International Covenant on Civil and Political Rights, article 1 of the UN Convention against Torture. And this reflects that it is just plain repugnant in whatever language you wish to use. The US may have gained short-term benefit from its use, but its long-term consequences are likely not to be so benign. The actions of the Bush administration are forfeiting support for the justice which is so required around the world. There is no satisfactory way of dealing with the murderers who perpetrated 9/11. What an indictment of US governments.
Roger Smith is director of the law reform and human rights organisation Justice
No comments yet