What kind of torture was used on the Nazi prisoners? Who authorized it? Were there any investigations or prosecutions?
 

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David Luban

It's questionable whether the Clean Team reinterviews will suffice to sanitize this information. After people have been tortured at least once, and imprisoned for years since that time, just how reliable can information they give up in the Guantanamo interrogation cells possibly be, even if the new interrogators are polite, culturally sensitive, and keep their hands to themselves? Wouldn't it dawn on someone who has been tortured that unless he gives the same answers this time around, he might be tortured again? Isn't the situation so inherently coercive that the evidence has no credibility? There are some bells that can't be unrung, and the torture bell is surely one of them. Such evidence is inherently unreliable - just as unreliable as when it was tortured out of the witnesses.

This argument assumes that the information obtained by the FBI under the Army Interrogation Manual rules was previously obtained under the CIA's coercive techniques and thus tainted.

The CIA was after actionable intelligence as to the identities and locations of other al Qaeda and to identify future terror operations. There is no report that CIA was using coercive techniques to obtain confessions as to past war crimes. Consequently, unless the military is seeking evidence to prove conspiracy to commit future crimes, it is doubtful that the FBI is obtaining the same information obtained by the CIA.

There is no bell to unring.

But there's another issue worth flagging. Lawyers, including government lawyers, are bound by an ethics rule forbidding them from speaking with parties who have legal representation without obtaining consent of the party's lawyer.

Ethical rules meant for the civilian judicial system do not apply to war crimes trials for enemy combatants.

Neither the Constitution nor the Geneva Conventions grant a right against self incrimination to captured enemy combatants. If the enemy does not have a right against self incrimination, he surely does not have a right to have an attorney present at interrogations telling him not to answer questions.

The idea is absurd.
 

My comment relates tangentially to the Nuremberg comparisons the Bush administration is making in its apparent plans to try the Guantanamo Six.

First,has no one noticed that the alleged acts of the Guantanamo Six occurred before the war began?

It seems to me that, before these men can be charged with “war crimes” (if any of the acts were, which is doubtful), there needs to be a war.

In the Hamdan case, Justice Stevens, speaking for the plurality of the Supreme Court, said:

“Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions,incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”

Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, the requirement for a state of war would surely remain.

Secondly,on what theory does the government expect to bring the "conspiracy" into the post 9/11 timeframe?

In the charges, there are 169 "overt acts" alleged, of which 164 occurred before 9/11 and hence before there was a war. Five acts occurred afterwards, consisting of such things as making celebratory propaganda videos. Can they bring a pre-existing conspiracy into the period of war?

This raises the Nuremberg point. Is the government, relying as it does on pre-Geneva law, plan to allege that there are Nuremberg precedents for acts pre-dating war being carried into the war timeframe?

Have I missed something, here? No one is commenting on what seems to me to be a glaring defect in the strategy to prosecute these offences as war crimes.
 

BD
Ethical rules meant for the civilian judicial system do not apply to war crimes trials for enemy combatants.

this depends upon whether those ethical rules are meant to prevent the admission of unreliable evidence, a goal which would apply more or less equally, or as a privilege to the defendant by virtue of citizenship. insofar as they are the former, because of the drastic penalties for conviction of terrorist acts and the need for good pr in this type of struggle, we should follow the ethical rules scrulously. insofar as restraints on judicial process are privileges of citizenship, it seems reasonable that they can be waived.

what is the harm of having no privilege against self incrimination for terror suspects that are not us citizens, or no spousal privilege?
 

Did the members of the "clean team" resemble a tabula rasa or did they have the benefit of the tainted fruit team's efforts? (With a lot of winks and nods?)
 

Neil (aka "Single Party Elitist"?): what is the harm of having no privilege against self incrimination for terror suspects that are not us citizens, or no spousal privilege?

This is a rhetorical question? And what a strangely inapt juxtaposition of rights. And what a deft substitution of "privilege" for "right". It seems so strange to me that "innocent until proved guilty" is seen in such a stingy light by a certain class of person. Some of us were taught that this is more than a local statute but the highest principle of law meant to limit all American prosecutorial efforts. I guess some folks just really believe in relativism where such values are concerned.
 

shag from brooklyn clarifies the point quite well. The defendants have no way of knowing how closely connected the "clean" and "dirty" teams are. My sister once did telephone surveying and asked an interviewee how she felt about a product. The woman didn't want to insult the manufacturers of the product because "one of them might be your boyfriend." To sophisticated urbanites, that's a ridiculous presumption, but obviously, it made sense to the interviewee.
 

neil:

It is a foregone conclusion that less evidence of any kind will be obtained if a lawyer is present telling his client not to answer questions.

Is there any empirical evidence that more unreliable evidence is obtained without a lawyer being present than with one?
 

Bart: If a person is in the custody of a lawless regime, he or she will say whatever they feel the regime wishes to hear. If the person hs undergone torture, then quite obviously, the condition applies.
 

Bart:

Congratulations on you very provocative posting here, you have really stimulated me. I have so many things I'd like to say but I'll limit myself to this:

It is not enough to have justice done, justice must seen to be done. The problem we are facing is that the methods we are currently using are methods that make it very had to see that justice is being done. Using any kind of coercive methods to get evidence from a subject to then be used to convict that subject is see as unjust. Everyone has personal experience with being coerced and we almost always feel that it was 'not fair'.
 

Rich:

If Khalid Sheik Muhammad and his merry band of mass murdering war criminals were terrified at the very thought of being in custody of the FBI and CIA and were spilling their guts from the outset, there would have been no need for any coercive interrogation to compel them to talk.

I sincerely doubt that the terrorists who draft and follow a manual of true torture including using power drills and blow torches, amputation, gouging out eyes, dragging behind vehicles, electric shock and beatings would be terrified of our whimpish version of "torture."
 

beau said...

Bart: Congratulations on you very provocative posting here, you have really stimulated me. I have so many things I'd like to say but I'll limit myself to this:

It is not enough to have justice done, justice must seen to be done. The problem we are facing is that the methods we are currently using are methods that make it very had to see that justice is being done. Using any kind of coercive methods to get evidence from a subject to then be used to convict that subject is see as unjust. Everyone has personal experience with being coerced and we almost always feel that it was 'not fair'.

I completely agree with everything that you just said.

However, the argument of the lead post is that the uncoerced testimony provided to the FBI should not be admitted into war crimes trials because different testimony on different subjects was coerced earlier by the CIA to gain actionable intelligence to roll up the al Qaeda network.

I cannot agree with this argument.

We should not have to choose between gathering actionable intelligence to prevent future terrorist mass murder and later gathering uncoerced testimony to prosecute al Qaeda leaders for their past war crimes.
 

There is no uncoerced testimony here when it comes to the waterboarding victims. Once a detainee has been tortured to gain intelligence, any further interrogation carries with it the implicit threat of further torture should he not talk.
 

garth:

1) You prevent future terrorist mass murder by killing or capturing the terrorists. The terrorist mass murder does not have to imminent (ie the Ticking Time Bomb scenario) for this to work.

2) I could give less than a damn about the dignity of Khalid Sheik Muhammad and his merry band of war criminals. If the CIA broke them, so much the better. Go tell the families of the thousands these war criminals have massacred that we have been too mean to them.

3) No one is "railroading" these war criminals. The charges against the 9/11 plotters are extraordinarily detailed with dates. locations and actions. This isn't the product of a person saying anything to get the torture to stop. Given that this will be the most carefully scrutinized trial since OJ, I think it is safe to assume that the Military has layers of evidence for each allegation.

4) Yes, this is damn close to my ideal resolution of this matter. The CIA broke these terrorists and rolled up al Qaeda, preventing further attacks on the United States. When the CIA was through gathering intelligence, these war criminals were handed over to FBI and the military for trial and with any luck a date at the end of a rope. This is a classic win win resolution.

Why you would want to change either result is incomprehensible to me.
 

Baghdad, you would have been a damned fine Nazi.
 

The charges against the 9/11 plotters are extraordinarily detailed with dates. locations and actions. This isn't the product of a person saying anything to get the torture to stop.

If the evidence is so detailed and is not based on torture, why did we have to torture them?
 

Neither the Constitution nor the Geneva Conventions grant a right against self incrimination to captured enemy combatants. If the enemy does not have a right against self incrimination, he surely does not have a right to have an attorney present at interrogations telling him not to answer questions.

Bart, if (1) government lawyers are bound by state ethics rules in the states that they are licensed, which they are as a matter of federal law, and (2) the detainees are represented parties, which they are, then it really doesn't matter that you would rather, as a policy matter, that ethics rules don't apply to war crimes trials before military commissions. Congress had to make an exception, and they didn't.

No true "the judiciary should follow the law as written" conservative would ever say otherwise.

And by the way, I am shocked at how little knowledge you have of the law given your law license. The no ex parte contact rule is separate from the Fifth Amendment privilege against self-incrimination, and is tested in the Multistate Professional Responsibility Examination that every lawyer must take to get a license.
 

Bart: If KSM and other al Qaeda members wish to be barbarians, if they wish to use blowtorches, et al, we can't really stop them from doing so. What we can do is to not sink to their level.
The likelihood that we will gain useful information from being sub-human brutes to our captives is more or less nil.
The likelihood of becoming a corrupt, lawless regime where torturing suspects becomes an end in itself is 100%.
"Power tends to corrupt, absolute power corrupts absolutely" is not a mere theory. We know from the Soviet Union's experiences in the 1930s that interrogating prisoners quickly becomes an end in itself and that interrogators will eventually start doing it just for the sheer pleasure of it.
No! As Americans, we cannot go down that path. Ever!
 

Dilan:

State bar ethical rules do not trump federal law. I am unaware of any state bar forcing the issue by harassing a JAG licensed in their state for following contrary federal law and regulations.
 

rich said...

Bart: If KSM and other al Qaeda members wish to be barbarians, if they wish to use blowtorches, et al, we can't really stop them from doing so. What we can do is to not sink to their level.

We have not and no one is saying we should in the future. The point was that people capable of chopping up and dragging to death captives, as al Qaeda has done with our captured soldiers, is hardly likely to panic at the thought of being captured by the CIA and made to listen to loud rock and roll.

The likelihood that we will gain useful information from being sub-human brutes to our captives is more or less nil.

Thankfully we are not acting like sub human brutes and have been very successful in gaining actionable intelligence from the likes of KSM.
 

Thankfully we are not acting like sub human brutes and have been very successful in gaining actionable intelligence from the likes of KSM.

# posted by Bart DePalma : 3:11 PM

Numbnuts, the CIA has admitted that it tortured people. For you to pretend otherwise is laughable.
 

Bart has obviously never heard of the "slippery slope" or of the "thin wedge" or of the "camel sticking his nose into the tent." I'm finished here.
 

State bar ethical rules do not trump federal law.

Bart, state bar ethical rules ARE INCORPORATED INTO FEDERAL LAW BY CONGRESSIONAL STATUTE. What part of the McDade Amendment don't you understand.

You are rewriting the law to what you would like it to say. If you don't want JAG's and other government lawyers working on the Guantanamo cases covered by ethics rules, why don't you lobby Congress to change the law? Because as it stands now, the law is explicit that they are covered.
 

dilan said...

BD: State bar ethical rules do not trump federal law.

Bart, state bar ethical rules ARE INCORPORATED INTO FEDERAL LAW BY CONGRESSIONAL STATUTE. What part of the McDade Amendment don't you understand.

I'll admit that I was not considering the McDade Amendment.

It was my understanding that the McDade Amendment applied to DOJ attorneys and other government attorneys which work with DOJ. Do you know if this amendment applies to JAG attorneys working independently of DOJ?

If so, then the question becomes whether a particular state's ethical rules pertain to enemy combatants.
 

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Two quick responses to Bart De Palma's postings.

First, it's untrue that civilian ethics rules don't apply to the military commissions. Military Commission rule 109 states that they do. Nor is it a question of federal law trumping state law. RMC 109 is federal law, and it incorporates state and military ethics standards into the practice of the military commissions.

Second, you write: "the argument of the lead post is that the uncoerced testimony provided to the FBI should not be admitted into war crimes trials because different testimony on different subjects was coerced earlier by the CIA to gain actionable intelligence to roll up the al Qaeda network." That was not the argument. My information is that the Clean Team is reinterviewing detainees (not necessarily the defendants alone, but others who have evidence to offer) about the same topics they gave up in coercive interrogation. My argument is that the answers they give are unreliable because - having been tortured once - they are likely to tell the interrogators what they want to hear. Under the Military Commissions Act, unreliable evidence is inadmissible.
 

Bart:

The McDade amendment is ambiguous on military lawyers, though it applies to any DOJ lawyer. It says that any "attorney for the government" is covered, and that INCLUDES any DOJ lawyer (defined by regulation). So the ambiguity is whether it is limited to DOJ lawyers or also includes military lawyers.

However, as Prof. Luban notes, the code of ethics governing JAG's also provides that JAG's are subject to state rules of professional conduct.

As I said, if Congress wants to, they could pass an exception for lawyers participating in the military commissions process. Or the military could revise its code of ethics with respect to the JAG's (assuming that the McDade Amendment's language doesn't reach the JAG's). But unless and until that happens, government lawyers are governed by the no ex parte contact rule. Because it is a rule that restricts the conduct of government lawyers, not a right that one can claim doesn't apply outside the context of the civil court system.
 

They are not located in a state of the US. Therefore, no state ethics law applies. Therefore the Depalma amendment has no effect