Wednesday, May 04, 2011

Bin Laden and the Torture Debate

Jonathan Hafetz

According to the New York Times, Osama bin Laden's death has "reignited" the torture debate. Did "enhanced interrogation techniques" lead to critical information in locating the al Qaeda leader? Does torture produce useful intelligence? Should it matter? Several excellent posts here at Balkinization address these and other questions.

This is not the first time, however, that a significant terrorism-related event has renewed the debate about torture, indefinite detention, military commissions and other controversial 9/11 practices. Recall, for example, the questions prompted by the arrest of Umar Farouk Abdulmutallab, the attempted Christmas Day bomber. Should he be subjected to military imprisonment rather than criminal prosecution? Denied Miranda rights to facilitate coercive interrogations? Similar questions arose after Faisal Shahzad attempted to explode a car bomb in New York City's Times Square. People likewise sought to draw broad conclusions about the ability of federal courts to handle terrorism cases from the trial of Ahmed Ghailani, the first (and only) Guantanamo detainee to be prosecuted in the United States.

Bin Laden's death won't resolve the torture debate, nor will it be the last time the capture or trial of a suspected terrorist reignites controversy over the basic direction of U.S. counter-terrorism policy. What the response to bin Laden's death shows is how questions that before were not subject to debate--i.e., is torture permissible (answer: no, never)--have seemingly become a legitimate subject of public discourse. It also suggests that until the United States establishes a meaningful accountability mechanism and comes to grips with the abuses committed after 9/11, those who support torture will continue to exploit each new opportunity to defend it through the creation of a pro-torture narrative.

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