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An Excellent Reason Not to Torture Prisoners

By ANDREW ROSENTHAL
May 22, 2012, 9:25 am

If there is one case that most completely represents everything that was morally wrong, legally indefensible and pragmatically foolish about President George W. Bush’s detention policies, it is the case of Abu Zubaydah.

Mr. Zubaydah, a 41-year-old Saudi citizen of Palestinian descent is said to have managed a network of terrorist training camps. He was arrested in 2002 and is in custody at the Guantanamo Bay prison. He has not been charged but, last week, his lawyer requested a military trial. Mr. Zubaydah may never get one, because Mr. Bush’s policies made a fair trial impossible.

According to numerous news reports, the two F.B.I. agents who led Mr. Zubaydah’s initial interrogation used standard, legal techniques [ http://www.thedailybeast.com/newsweek/2009/04/24/we-could-have-done-this-the-right-way.html ] including rapport-building, and these proved effective: He named Khalid Shaikh Mohammed as the main organizer of the 9/11 plot and said that Jose Padilla planned to use a “dirty bomb” to attack a U.S. city.

Later, Mr. Zubaydah was turned over to the C.I.A. and to a secret prison in Thailand, where he was water-boarded at least 83 times in one month. In the early 2000s, such treatment was routine: The Bush administration reasoned that, after 9/11, anyone who objected to torture was hopelessly naïve. Anything short of torture, they seemed to think, meant coddling terrorists.

But Mr. Zubaydah’s interrogators told the Times [ http://topics.nytimes.com/topics/reference/timestopics/people/z/abu_zubaydah/index.html ] that, after being water-boarded, he revealed nothing more of value. The C.I.A. succeeded only in tainting the evidence against him.

Mr. Zubaydah therefore falls into the fifth of five categories of Guantanamo detainees that Mr. Obama outlined in his speech on detention policy in May 2009: “a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

These detainees will be held until the war on terror is over. In other words, probably until they die. Mr. Zubaydah’s lawyer, Joseph Marguiles, wrote to the military commission chief last week explaining that his client wants to prove his innocence. Or maybe he wants to make a political point. Either way, it seems unlikely he will get his wish.

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Related Posts From Taking Note

Ten Years Later: Torture, Indefinite Detention, Military Tribunals
http://takingnote.blogs.nytimes.com/2012/02/07/ten-years-later-torture-indefinite-detention-military-tribunals/

Privatized Torture
http://takingnote.blogs.nytimes.com/2012/05/14/privatized-torture/

Justice Delayed, Torture Classified
http://takingnote.blogs.nytimes.com/2012/05/04/justice-delayed-torture-classified/

How to Try Terrorists
http://takingnote.blogs.nytimes.com/2012/04/25/how-to-try-terrorists/

Bush-Era Torture: A Dissenting View
http://takingnote.blogs.nytimes.com/2012/04/09/bush-era-torture-a-dissenting-view/

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© 2012 The New York Times Company

http://takingnote.blogs.nytimes.com/2012/05/22/an-excellent-reason-not-to-torture-prisoners/ [with comments]


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A Court Covers Up

Editorial
Published: May 24, 2012

The Obama administration has added to its string of victories in a tawdry pursuit — making overly expansive claims of secrecy and executive power to deny full disclosure of torture and other abuses of prisoners committed during the George W. Bush administration.

A three-judge panel of the United States Court of Appeals for the Second Circuit in New York has upheld [ http://www.ca2.uscourts.gov/decisions/isysquery/43dcc84a-b97d-4cac-b2ca-df43325f7b00/1/doc/10-4290-cv_opn.pdf ] the administration’s claim that cables describing the Central Intelligence Agency’s use of waterboarding and a photograph of a “high value” detainee, Abu Zubaydah, taken during the time he was subjected to repeated waterboarding, are exempt from disclosure under the Freedom of Information Act, or FOIA.

The new decision came as part of a long-running lawsuit brought by the American Civil Liberties Union and other rights groups that are seeking records related to detainee mistreatment. Written by Judge Richard Wesley, the decision is too accepting of the government’s weak claim that revealing material redacted from the cables, along with the photo, would harm national security.

The court found that FOIA’s exemption for “intelligence methods” applied even though the brutal conduct illuminated by these records is considered illegal by President Obama and a host of laws and treaties and is not covered by the C.I.A.’s charter. The court also said the C.I.A. was justified in withholding two passages in Justice Department memos that appear to concern the origins of the Bush torture program.

The C.I.A. is, generally, entitled to shield legitimate intelligence sources and methods. But the public’s interest in disclosure in this case was especially strong. And, as the A.C.L.U. argued, unlawful waterboarding is not properly an intelligence method within the scope of the FOIA disclosure exemptions. The government argued, and the judges agreed, that the photo of Mr. Zubaydah would reveal the detainee’s condition after torture. That is a compelling argument for its release.

The judges should have given the government’s overwrought claims of national security and secrecy special scrutiny, not extreme deference.

© 2012 The New York Times Company

http://www.nytimes.com/2012/05/25/opinion/a-court-covers-up.html


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