COMM 317: Due process, torture in the news

Now that the Justice Department is planning to try Khalid Shaikh Mohammed and five other alleged terrorists before a miliary tribunal in connection with the 9/11 attacks on New York and Washington, issues of due process are in the news again. So staring back at me this morning while I'm standing in line for my daily Chicago Tribune and bottled Starbucks confection is the following headline in the Trib:

9/11 trial
to enter
uncharted
legal area

It was right next to a picture of a burned house belonging to a alleged serial killer who last plied her alleged trade in 1908, a well-charted area both legally and journalistically. People like to read about trials, but they like even more to read about serial killers.

The Trib says the 9/11 trials will be controversial. Here's why:

The charges filed against the six, including alleged Sept. 11 mastermind Khalid Shaikh Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, Cuba, and the military plans to try them together.

Monday's announcement takes the Pentagon, and the country, into largely uncharted legal territory. The procedures of the military commissions have been challenged repeatedly in court, with some success, and legal precedents that have been developed by courts over decades or longer hold less sway than in the civilian criminal justice system.

But the administration argues that ordinary courts are not equipped to handle the sensitive national security considerations involved in trying top terrorists.

Complicating the 9/11 trials, if they go to trial, is the fact Mohammed was "waterboarded" -- an interrogation technique widely considered to be torture -- at the U.S. facility for alleged terrorists at Guantanamo. The Trib reports:

Last week, CIA Director Michael Hayden confirmed that Mohammed, the purported mastermind of the attacks, was one of three terrorism suspects in CIA custody who had been subjected to the interrogation technique known as waterboarding.

Waterboarding makes a prisoner believe he is in imminent danger of drowning. The suspect is tied to a board and water is poured through a cloth that covers his face. The practice is prohibited by the Geneva Conventions and the U.S. Army Field Manual, and most of the international community considers the technique torture.

In addition, al-Qahtani, who Pentagon officials say was supposed to have been the 20th hijacker in the Sept. 11 attacks, has alleged that he was tortured and last fall recanted a confession he said he made after he was abused by interrogators.

There are several open questions here. How reliable is information obtained by torture? Is it allowed under U.S. law? The Boston Globe has a good background story on torture and its legal implications.

All of these questions are up in the air, and properly so since they're before the courts. Expect them to be argued at length as the 9/11 cases progress to trial. Expect to see clear and convincing arguments on both sides of the issue. Both? That's too simple. On all sides of all the issues.

The British, by the way, are nervous about the use of what they consider to be torture by a key ally in the war on terror. British Foreign Secretary David Miliband said on BBC Radio 2's Jeremy Vine show he is concerned about the upcoming trials:

In answer to a question from a Jeremy Vine show listener, Mr Miliband said the UK defined water-boarding as torture, adding that "we don't... we would never use water-boarding".

Mr Miliband said: "There's absolutely no question about the UK government's commitments in respect of torture, which is illegal, and our definition of what torture is.

"And I think it's very, very important that we always assert that our system of values is different from those who attacked the US and killed British citizens on 11 September, and that's something we'd always want to stand up for."

But Miliband said he hasn't lost faith in the American judicial system:

We have some concerns about that [whether Khalid Mohammed can get a fair trial], and there are still some cases in front of the American Supreme Court, because, of course, the great thing about America, and I suppose countries like ours as well, is that the independent legal system provides a check and a balance on the operation of the legal system itself.

In 2005 Great Britian's highest court, known as the Law Lords, ruled that evidence obtained by torture could not be used in British courts, even though the United States is a close ally in the war on terror. The Court of Appeal, an intermediate appelate court similar to our federal circuit courts in Chicago and other cities, had ruled such evidence was admissible.

The Law Lords struck down the Court of Appeal decision in strong, stirring, indignant language that referred to centuries of English common-law precedent, to the moral weight of international treaties and obligations like the United Nations Convention Against Torture, and to the rights of individuals as enshrined in the European Convention on Human Rights.

"The principles of the common law, standing alone, in my opinion compel the exclusion of third-party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice," Lord Bingham wrote.

He referred to authorities from as far back as the 15th century to make the case that torture has no place in English law, or indeed in any law. He quoted the historian Sir William Holdsworth, who wrote in 1945 that "once torture has been acclimatized in a legal system, it spreads like an infectious disease" and "hardens and brutalizes those who have become accustomed to it."

The prohibition against torture "has now become one of the most fundamental standards of the international community," Lord Bingham continued.

"This prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate."

It is important to remember here the Law Lords were applying a British definition of torture and their ruling affects cases only in the British courts. But, as The New York Times noted, "the ruling seems to have been made with the current international situation very much in mind." The Times added, "Several of the concurring opinions referred explicitly, and not flatteringly, to the United States."

An exhaustive (and exhausting) history of torture from the ancient Greeks to early 20th-century Europe is found in the 1911 edition of Encyclopaedia Britannica", which concludes, "The whole subject is now [1911] one of only historical interest as far as Europe is concerned." The Britannica quotes Sir Edward Coke (the 17th-century English jurist who is quoted at the top of our syllabus), who said, "... there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in." But the encyclopedia notes torture was used quite a bit during the reigns of Henry VIII and Elizabeth I, and has a link to something called the "scavenger's daughter" that I know you'll want to know about.

The 1911 edition of Britannica, by the way, is widely considered to be the best encyclopedia ever written.

But of course that was before Wikipedia.