With the first two terrorism cases from the Guantánamo Bay detention center in the pipeline at last, the United States has an important opportunity.
Open and honest proceedings could showcase Western values and stand in sharp contrast to the horrid little jihadist snuff videos furtively circulating on the Internet. The opportunity may be squandered, however, if the government proceeds with plans to try inmates with evidence obtained in coercive interrogation.
News that the military has employed "clean teams" to reinterview some inmates who gave self-incriminating evidence under coercive interrogation is hardly reassuring. Such efforts are no more than a fig leaf.
Such evidence now may be used to prepare cases, according to Brig. Gen. Thomas Hartmann, legal adviser to the "convening authority," the military body that will oversee the tribunals. Asked before a congressional panel last year if military prosecutors might do so, Hartmann said: "If the evidence is reliable and probative and the judge concludes that [it] is in the best interest of justice to introduce that evidence . . . those are the rules we will follow."
It is important here to distinguish between two kinds of interrogation. One kind is for the purposes of intelligence gathering; its purpose is to obtain information to prevent attacks. This is the only circumstance in which coercive methods can be justified morally, if not legally. The other kind of interrogation is for the purposes of criminal prosecution, to prove and punish acts committed in the past. Extracting confessions through torture is the opposite of justice, and such evidence has no place in any fair judicial setting.
Air Force Col. Morris Davis, chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from September 2005 until October 2007, has been arguing much of this for years, and it has gotten him nowhere. He resigned his post last year to protest the use of tainted evidence and to object to any tribunals being conducted in secret - to protect classified information and methods. Davis is no bleeding heart. He knows better than most how dangerous some of the Guantánamo inmates are, and how culpable. Many richly deserve severe consequences for their crimes.
He also knows that it matters how such justice is applied.
"You look at how al-Qaeda treats us when we're captured," he said in an interview with Dan Rather last year. "We're different. We've taken a beating in the eyes of the world for the way that we've handled [detainees], and that's tragic, in my view, and it was unnecessary. We need to do this right. I think it's in our national interest to do this right."
Any fair process is likely to result in some acquittals, something the Bush administration apparently has been reluctant to risk. Already, defense lawyers representing Canadian inmate Omar Khadr, one of those whose case is moving forward, have raised compelling questions about his culpability. Khadr was arrested in an al-Qaeda house during a gun battle in Afghanistan, and there is strong evidence that he was a practicing jihadi responsible for the death of at least one U.S. soldier. But he also was just 15 years old and had been sent to Afghanistan by his father, according to family members, to act as a translator. He may well be guilty and deserve punishment, but he also deserves a fair defense.
It has been six years since the United States started herding suspected Islamist terrorists into detention in Guantánamo Bay, and so far only one has been prosecuted - Australian David Hicks pleaded guilty to supporting terrorists. Hicks owns this distinction not because he was the most dangerous man imprisoned at Guantánamo - he was certainly not that. It was not because the United States had a particularly strong case against him, or even that his name came first in the alphabet. His case was adjudicated for political reasons, because the Australian government put pressure on the Bush administration to do something about its incarcerated, uncharged citizen.
Political influence and tainted testimony are bad ways to start. Unlike many who criticize the Guantánamo problem, I am not outraged by the existence of Camp X-Ray. The danger posed by non-state Islamist fanatics is real and substantially different from any ever faced by our country. It is a different kind of war, one not envisioned by the Geneva Accords, drawn up at a time when war was understood to be a clash between uniformed opposing armies. Rules for detention and handling of prisoners in this new kind of war, most of them captured in Afghanistan, pose a challenge to the traditional ways of handling captives. No matter who was president over the last six years, there was going to be a political and legal struggle over what to do with them.
Davis was assigned a big role in handling that challenge and eventually quit in protest. He felt from the beginning that established military procedures for bringing charges and holding tribunals were up to the task. Continuing to hold hundreds of suspected terrorists, some of whom likely would be found not guilty if given an opportunity to defend themselves, is doing inestimable damage to America's reputation.
"Not one single person is serving a sentence imposed by a military commission," he said last week. "If this was truly a military mission, free of political interference, we would be at least halfway through the host of cases at Guantánamo by now."
With this process about to begin at last, some of the damage done by long delay and inaction may be undone, but only if the tribunals are seen to be fair.
Coercive interrogation ought to be illegal, and the fruits of it cannot be fairly employed in any criminal setting. In rare instances where interrogators feel compelled to break the rules to gather timely intelligence, they should know, first, that they are breaking the rules, and, second, in Davis' words, that "you seriously compromise a fair prosecution down the line."
Mark Bowden is a former staff writer at The Inquirer and is now national correspondent for the Atlantic Monthly.