There's one more concern that I haven't seen raised yet, and it's got Potential National Security Crisis written all over it. This might be merely the result of my near-obsessive "Law & Order" and "NCIS" habit, but I have to ask: what can be done with evidence obtained illegally? Say the NSA's secret program turns up evidence that an American citizen is plotting with al Qaeda to commit terrorist acts within the US. He's arrested, which is a good thing, and brought to trial, which is another good thing. Then the judge is forced to throw out the evidence obtained by the wiretap, because we're all obliged to follow the law even if the president isn't, and the law says that you have to have a warrant to wiretap. The government is forced to let a terrorist go free because they couldn't be bothered to get a warrant before tapping his phone. How have we been made safer when this guy is back out on the street, fat and happy on the knowledge that he managed to pull one over on the federal government?
That was me, way back in December, arguing that using illegal techniques to collect intelligence seems like a fine way to get everything thrown out in court and let a potentially guilty man go free. Now, this is MSNBC, two days ago:
In interviews with MSNBC.com — the first time they have spoken publicly — former senior law enforcement agents described their attempts to stop the abusive interrogations. The agents of the Pentagon's Criminal Investigation Task Force, working to build legal cases against suspected terrorists, said they objected to coercive tactics used by a separate team of intelligence interrogators soon after Guantanamo's prison camp opened in early 2002. They ultimately carried their battle up to the office of Secretary of Defense Donald H. Rumsfeld, who approved the more aggressive techniques to be used on al-Qahtani and others.
Although they believed the abusive techniques were probably illegal, the Pentagon cops said their objection was practical. They argued that abusive interrogations were not likely to produce truthful information, either for preventing more al-Qaida attacks or prosecuting terrorists.
And they described their disappointment when military prosecutors told them not to worry about making a criminal case against al-Qahtani, the suspected "20th hijacker" of Sept. 11, because what had been done to him would prevent him from ever being put on trial. [emphasis mine]
Unfortunately, this kind of thing takes the fun out of a "told you so" dance. The detainee in question, Mohammed al-Qahtani, is suspected of being the fifth hijacker on Flight 93 that crashed in Pennsylvania, bringing the total number of 9/11 terrorists to a nice, round 20. Of all of the people detained by the US government, this man is one of the very few who can be connected to the 9/11 attacks with any amount of certainty, meaning that his trial and conviction would be an actual chance at actual justice for the nearly 3,000 lives lost. But that's probably not going to happen, and why? Because the US had to use illegal interrogation techniques.
The Qahtani interrogation was a success, the Pentagon has said. Al-Qahtani admitted he had been sent to the United States by Sept. 11 plotter Khalid Sheik Mohamed, that he had met Osama bin Laden several times, that he had been trained at two al-Qaida camps, that he knew the shoe bomber Richard Reid, and that 30 other detainees he identified had been bodyguards for bin Laden.
The law enforcement investigators, however, say the interrogation produced little new. "I will just say that most of what we knew, we knew before," Col. Mallow said. "A lot of the intelligence 'successes' that have been touted were a result of much earlier disclosures made by detainees to our agents."
Of course, al-Qahtani now repudiates those statements. And many experts (including several at the Pentagon) have argued that intelligence gained through torture is rarely accurate. If, however, al-Qahtani's statements were true, the US is holding one of the 9/11 terrorists at Guantanamo Bay - and will never be able to bring him to trial because of what has been done to him.
The cops who directed the investigation, Col. Mallow and Fallon, said they were told several times by prosecutors in the Pentagon’s Office of Military Commissions, as the military trials are known, not to keep bringing forward a case against al-Qahtani, that there would be no case.
"The techniques made some detainees unprosecutable," Fallon said. "It would provide the defense counsel a tremendous advantage at trial to sway the presiding officer and members, as well as it would have disclosed those techniques to the public."
Al-Qahtani's lawyer says she believes he'll never face trial, that eventually the government will have to transfer him back to Saudi Arabia.
When I made my case against torture a few weeks ago, this is one thing that I neglected to mention. Giving in to the desire to take out our frustration and rage on detainees now lessens our chance for actual justice later on. It's a weak satisfaction, and it's a greedy one. Vengeance may be enough for the one person doing the waterboarding, but justice is for everyone. And if terrorists end up going free because the Pentagon was so enamored of "nontraditional interrogation techniques," that is something that they are taking away from us. They're taking away our safety by letting killers back onto the streets, and they're taking away our right to face down those who have wronged us and say, "You don't get to hurt anyone else ever, ever, ever again."
George W. Bush has said over and over again that it's his job to protect us, to keep us safe. Setting aside the fact that his job is to protect and uphold the Constitution, any responsibility to ensure our physical safety is not served by letting terrorists go free on a technicality. It's time for Bush to realize that the rules he's expected to follow were written by men far wiser than he, for reasons of which his primitive lizard brain is unable to conceive. His flippant cowboy attitude and blatant disregard for the Constitution do nothing to keep us safe.