Amidst headlines about the Russia investigation and the alleged misdeeds of presidential compatriots, it would be easy to forget that the United States is still dealing in a tangible way with policy decisions made in the wake of the 9/11 attacks. Just two weeks ago, the judge presiding over the military commission prosecutions of some of the most high profile suspects, including Khalid Shaikh Mohammed, ruled that the government must give defense attorneys greater access to information about the CIA agents who interrogated these suspects following their capture.
The defense sought this information to explore the background of the agents, possibly to attack their credibility at trial, and to develop evidence of the torture their clients endured during the CIA interrogations. Judge James Pohl concluded in his order that the restrictions the government had imposed on access to this information “unreasonably impeded” the ability of the defense to “investigate their case and access witnesses and evidence.” He provided an important illustration of the consequences of policy decisions made after that fateful day in 2001.
Initially, the subject matter here undercuts any argument that military commissions will more efficiently and effectively serve justice on terrorism suspects than Article III courts. Twelve years after Congress created the commissions, its members are still addressing preliminary matters relating to discovery and pretrial investigations. Notably, as the order shows, the commissions have relied upon statutes and precedent from Article III courts in resolving these matters.
This should put to rest any lingering belief that the military commissions would require less process than their civilian counterparts and lead to swifter justice. It turns out that the commissions, no less than civilian courts, have sought to ensure that the suspected terrorists receive full and fair trials. Recent statements from the White House suggesting that more terrorism suspects should be shipped to Guantanamo Bay for swift and sure justice do not withstand serious analysis.
There are other important lessons from this ruling. One of the main reasons the defense needs access to information about the CIA agents who conducted interrogations is to explore the alleged torture of the defendants following their capture. These are inconvenient facts for the government, which has sought to shield this kind of investigation by claiming the need to protect national security. But it was the government that decided at the outset to employ enhanced interrogation techniques and excessive coercion on terrorism suspects. This ruling is a stark reminder that the government cannot have its cake and eat it too.
Bear in mind that there is no reason to believe that interrogation without torture of these suspects would have been any less effective. Indeed, it is entirely possible that legal interrogation methods, like those set out in the Army field manual, would have yielded the same or even better cooperation from the suspects, and that the evidence against them in these prosecutions would as a result be free of the taint of torture.
As the late Senator John McCainJohn Sidney McCainThe Memo: Powell ended up on losing side of GOP fight A pandemic of hyper-hypocrisy is infecting American politics Virginia race looms as dark cloud over Biden's agenda MORE observed, many of the CIA claims that abusive interrogations of detainees had produced actionable intelligence in the past were “exaggerated” and “misleading.” The ruling this month reminds us that there are reasons to question and doubt the use of enhanced interrogation techniques going forward, especially in light of current and unsubstantiated claims by the White House that such techniques are necessary and effective.
Judge Pohl should be applauded for his ruling in this case and for reaffirming the power and importance of the rule of law. Contrary to President TrumpDonald TrumpTrump goes after Cassidy after saying he wouldn't support him for president in 2024 Jan. 6 panel lays out criminal contempt case against Bannon Hillicon Valley — Presented by Xerox — Agencies sound alarm over ransomware targeting agriculture groups MORE asserting that other nations regard our justice system as a “joke” and “laughing stock,” this ruling exemplifies the virtues of our commitment to fairness and highlights the critical role of the lawyers who are working to ensure that we do not forsake it, even when dealing with individuals accused of the very worst criminal acts.
Victor Hansen is a professor of criminal justice and national security law at New England Law in Boston. Lawrence Friedman is a professor of privacy and constitutional law at New England Law in Boston. They are the authors of “The Case for Congress: Separation of Powers and the War on Terror.”