Torture's consequences

Sunday, October 10, 2010

TORTURE IS not only morally reprehensible; it is legally toxic.

Proof was delivered Wednesday by a New York judge, who barred the U.S. government from presenting a key witness in the first federal court prosecution of a former Guantanamo detainee. The reason: The government learned of the witness's identity after it subjected the defendant to "enhanced interrogation techniques" at a Central Intelligence Agency secret prison.

The Justice Department did not contest allegations by defendant Ahmed Khalfan Ghailani that he had been tortured. Instead, it asked Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York to assume that everything Mr. Ghailani said while in CIA custody was the product of coercion. Although the government argued that it also learned of the witness through independent means, the judge concluded that the witness's testimony was not "sufficiently attenuated" from the "coerced statements to permit its receipt in evidence."

"The Court has not reached this conclusion lightly," wrote Judge Kaplan, whose courtroom in lower Manhattan sits just blocks from Ground Zero. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand."

The Justice Department is weighing whether to appeal. The judge's ruling is not necessarily fatal to the government's attempt to convict Mr. Ghailani for the 1998 East Africa embassy bombings. The Justice Department has obtained guilty verdicts in the cases of four other defendants without the use of the excluded witness.

The decision should serve as a stark reminder of why rejecting torture is a moral and legal imperative of the highest order. Cruel and inhumane treatment is prohibited by domestic and international strictures. Reliance on extreme and coercive techniques undermines the country's moral authority throughout the world. And, as the ruling shows, it endangers prosecutions because evidence obtained by torture cannot be introduced in court.

Some on the right argue that the case illustrates why suspects like Mr. Ghailani should be tried in a military commission, where rules of evidence are more flexible. But since last fall, military commissions have also barred introduction of evidence obtained by torture. The results in this case would likely have been the same -- and rightly so.

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