Feds defend torture again

OPINION:

While the public’s attention this summer has been drawn to masked U.S. Immigration and Customs Enforcement agents arresting folks without warrants, presidentially imposed sales taxes on goods from foreign countries that three federal courts have invalidated, and the fruitless Kabuki dance between President Trump and Russian ruler Vladimir Putin in Anchorage, Alaska, the federal government continues its slow assault on the Constitution at the Guantanamo Bay naval base in Cuba.

The feds sustained a major setback in April when a military judge ruled at the trial of Ammar al-Baluchi that evidence obtained under and as a result of torture is inadmissible. Mr. al-Baluchi is one of the five remaining defendants accused in the attacks of 9/11 and a nephew of Khalid Shaikh Mohammed, the so-called mastermind of the attacks. So-called because Osama bin Laden was the person designated by the feds as the mastermind until they killed him and his family — without any 9/11-related charges having been filed against him — in his home in Pakistan.

Mr. Mohammed and Mr. al-Baluchi were to have been tried together, along with their three alleged accomplices, when the feds decided that the torture of Mr. Mohammed was too egregious for them to defend in a public courtroom.

So the prosecutors initiated plea negotiations with Mr. Mohammed’s defense attorneys, which resulted in a plea agreement accepted by the court, the defense, the prosecutors and their bosses in the Department of Defense. Then Defense Secretary Lloyd Austin overruled the general in charge of the prosecutions and directed the prosecutors who had initiated, drafted and publicly accepted the plea agreement to ask the court to nullify it.

Following standard rules of criminal procedure, the court declined to nullify the Mohammed plea agreement because, by the time Mr. Austin objected to it, it had become a binding contract. An appeals court disagreed, and the Mohammed case is now back in the military trial court without a trial date.

There is no trial date because no trial judge has been assigned to the case. The judge who accepted Mr. Mohammed’s guilty plea has since retired, and no judge has been assigned (nor are any judges volunteering for the case). The case docket consists of 40,000-plus pages of documents for a judge to read before trial. Whoever the judge is will be the fourth on the case. The prosecution team has changed just as many times.

Why is this happening? Largely because military justice is to justice as military music is to music: slow, heavy, ponderous, unending and repetitive. Had President George W. Bush not created (and his successors not accepted) a devil’s island 90 miles from Florida and instead permitted the Department of Justice and civilian federal judges to handle these cases, they would have been resolved 20 years ago.

However, Mr. Bush believed his torturers could do as they wished at Gitmo. He argued that because the base is in Cuba, the Constitution didn’t apply, federal laws couldn’t be enforced, and those meddlesome federal judges couldn’t interfere.

The Bush administration struck out on all three arguments before the Supreme Court, which held that wherever the feds go for more than a fleeting moment, the Constitution goes with them. Still, Bush & Co. didn’t trust the federal judiciary or their own Justice Department to handle these cases. So, the cases are stuck in a system that is ill-equipped to address cases of this magnitude and subject to military procedures that regularly rotate judges and prosecutors onto and off assignments.

Now, back to Mr. al-Baluchi. The recently retired trial judge who accepted the Mohammed guilty plea and is familiar with the 40,000-plus pages of documents in that case ruled that Mr. al-Baluchi had been tortured egregiously more than 1,000 times. He had been waterboarded, sodomized, denied sleep for long periods and chained up like a pretzel so his muscles were continuously stressed.

Apprentice CIA agents even took turns smashing his head against a wall. Some apprenticeship.

Mr. al-Baluchi was even denied water for 48 hours as a punishment. His offense? While alone taking his one shower per week, he scrawled his name in the steam as it accumulated on a shower wall. Only a prison guard saw the name. Like I said, this is devil’s island.

The argument in Mr. al-Baluchi’s case is whether the torture lasted beyond the 1,000-plus sessions. Medical professionals for the defense and reluctantly for the government testified that he had been so brutalized that he was helpless to resist the suggestions of his post-torture interrogators. Just as the government’s torturers had planned. Just as their emails had predicted.

Thus, the court ruled, his statements to his post-torture interrogators were so tainted by his fear of more torture and his persona so malleable that his statements to them were unreliable. The torturers were CIA agents and their foreign collaborators and their apprentices. The interrogators, who had nothing to do with the torture, were FBI agents. It was to those FBI agents that Mr. al-Baluchi made the confession that the court barred from the courtroom.

Last week, the feds filed their appeal of the suppression of the confession. They argued that torture stops when the torturers leave the torture room and that anything said to a nonthreatening FBI agent thereafter is reliable. This defies case law and scientific analysis of the mental disposition of long-term torture victims, and it defies the writings of the outside contractors whom the CIA hired to supervise the torture. So said the same appellate court to which this case has been appealed in a similar ruling last year.

What government claims such control over a legally innocent person that it can, with impunity, painfully wreck his body and destroy his mind? What government employs torturers knowing their results will be legally useless? What government lacks all sense of natural rights, humanitarian dignity and due process? Ours.

• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.