The failures of the legal system for both the torturers and the tortured.

The failures of the legal system for both the torturers and the tortured.

The failures of the legal system for both the torturers and the tortured.

The law, lawyers, and the court.
April 28 2008 10:41 AM

Getting Away With Torture

The failures of the legal system for both the torturers and the tortured.

Dick Cheney. Click image to expand.
Dick Cheney

It's pretty much a given that our "terror trials" aren't working. The long-awaited prosecutions of a fistful of prisoners at Guantanamo Bay—proceedings just getting under way after more than six years of tinkering—are barely moving forward, for reasons now having more to do with politics than law. Evidence is flimsy and stale, and prisoners claiming to have been aggressively interrogated and subject to involuntary use of drugs are now refusing to participate in their trials. There may yet be verdicts at Guantanamo. But following years of abuse, neglect, and extreme secrecy, there won't be justice.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The other place we won't see legal accountability is at the upper levels of the Bush administration, where evidence of lawbreaking is largely dismissed or ignored. I want to be clear that there is no moral equivalence between the actions of members of the Bush administration and those of alleged "enemy combatants" at Guantanamo. But both the tribunals at Guantanamo and the wrongdoing in the Bush administration reflect how legal processes can fail under extreme political pressure.


Outside of the Bush administration, there is near-universal bipartisan agreement that Guantanamo should be shut down and the military commissions scrapped. Certainly a compelling case could have been made for Nuremburg-style trials for some of the prisoners held there—such as Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks. But the CIA has admitted that Mohammed was water-boarded, rendering his confession unreliable and any possible subsequent conviction a sham. And even if we do press forward with this clutch of trials for terrorists at Guantanamo, there still remain almost 300 detainees at the base who've been jailed there for years without charges. At least some of them were turned in by Afghan captors for bounties, averaging $5,000 per head. Others are held based on the coerced testimony of their confederates. Some have been subjected to multiple preliminary status hearings (known as Combatant Status Review Tribunals) when they weren't found to be "enemy combatants" the first time around.

Full and fair trials might have happened for enemy combatants swept up after 9/11, but political missteps too numerous to detail have resulted in a process that now exists solely to prove to the world that these detentions were justified; that the captives are—as former Defense Secretary Donald Rumsfeld famously called them—"the worst of the worst." That's a political conclusion, not a legal one. And it's why Col. Morris Davis, former chief prosecutor for the military commissions at Guantanamo, resigned last fall, claiming political interference in the trials had created the perception of a "rigged process stacked against the accused." Davis later told The Nation that in a conversation with then-Pentagon general counsel William Haynes in 2005, Haynes told him flatly, "We can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions." Haynes resigned shortly after that conversation was reported.

Bad evidence, tortured testimony, delay, error, the guilty prisoners jumbled up with merely unlucky ones, and the necessity of politically motivated convictions over truth-seeking. But politics won't keep just the Gitmo prisoners from getting a fair trial. Politics will also keep those responsible for any alleged lawbreaking at Guantanamo from ever having to defend their actions in a court of law.

The legal question should have been a straightforward one: If prisoners were illegally tortured at Guantanamo and Abu Ghraib, who was responsible? On April 1, an 81-page "torture" memo produced by John Yoo, second in command at the Justice Department's Office of Legal Counsel from 2002 to 2003, was declassified. Along with its assertions of nearly unchecked presidential power, Yoo's 2003 memo argued that military interrogators could subject suspected terrorists to harsh treatment so long as it didn't cause "death, organ failure or permanent damage." (Yoo's memo was rescinded in December 2003.)