Wednesday, June 18, 2014

Conservatives, Abu Khattala, and Guantanamo

Mark Tushnet

At Lawfare, Benjamin Wittes expresses puzzlement at the conservative "hang-up" (his word) on "why ... so many conservatives [are] so married to the idea that detention or military justice is the right answer" to the question of what to do now that the (alleged -- what do I know beyond the news reports?) mastermind of the Benghazi attacks has been seized by U.S. forces. The answer seems to me clear: Conservatives believe (a) that detention at Guantanamo will in fact lead to the use of more aggressive interrogation techniques than detention on U.S. territory, and (b) the products of such interrogations might be admissible in military-commission trials even if they are not admissible in ordinary criminal trials. It's also reasonably clear to me that (a) is not (currently) true; the interrogation techniques in fact used today at Guantanamo will not be different from those used on U.S. territory. And, I'm reasonably confident (a lower level than "reasonably clear") that it is possible to conduct aggressive interrogation to obtain intelligence information without prejudicing the possibility of introducing information relating to the attacks in an ordinary criminal trial. (The conservatives Wittes writes about don't, it seems to me, distinguish between intelligence-related interrogation and interrogation dealing with the Benghazi events.)

I've been delicate in the forgoing formulations, but now, to be less delicate: The conservatives Wittes is writing about believe that Abu Katalla should be subjected to torture -- they're just not willing to say so openly.

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