T Nation

Guantanamo Prosecutor on Torture

Unforgivable Behavior, Inadmissable Evidence:

"TWENTY-SEVEN years ago, in the final days of the Iran hostage crisis, the C.I.A.�??s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, �??We don�??t do stuff like that.�??

Today, Tom Ahern might have to say: �??We don�??t do stuff like that very often.�??

During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders.

Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation.

Once we condemn and stop all waterboarding, what do we do in cases where it was conducted? An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his �??confession�?? as evidence in a death-penalty trial.

My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue �?? efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, �??We don�??t do stuff like that.�??"

Courageous man. I hope his career isn’t over.

Great article. It matches my own views of waterboarding. I don’t see it as a super-evil action that makes us “as bad as them”. That’s absurd. But by not condemning it we’re losing a significant international advantage and reputation I don’t think we can afford to lose.