Forced Confession

 Today marks another anniversary since the 9/11 terrorist attack on the United States. Twenty-four years to the day have now passed since the tragedy. And still—almost a quarter-century later—there has never been a trial of the people responsible. Why? 

The U.S. government has no one but itself to blame for the delay. The Lawfare podcast today explains. With one eye on today's calendar date—they decided that now is a fitting time for an update on the Guantanamo 9/11 litigation, and why it has never resulted in an actual criminal trial.

The U.S. government has long detained people it believes were the "masterminds" behind the attacks. Some have even "confessed" to their role in the events. 

There's just one big problem—those "confessions" were obtained through torture—or, a second time, by a so-called "clean team" interrogation, which may not have used torture—but which was nonetheless conducted by the same government that had just tortured the suspects for years, repeatedly, in CIA black sites. 

And a confession obtained through torture—in addition to being an obscene violation of human rights and human dignity—is also very obviously completely unreliable and inadmissible in a court of law. 

For centuries, to be sure—bizarrely—jurists defended the ancient practice of judicial torture—"the question"—on the theory that it somehow was effective at arriving at the truth. When all along: common sense would tell anyone that nothing could be more likely to distort and bury the truth. 

"I fear you speak upon the rack / Where men enforcèd do speak anything"—as a character in Shakespeare's Merchant of Venice puts it. 

The line appears in the midst of a passage of "amorous jesting"—as Lytton Strachey notes in his Elizabeth and Essex. 

Nonetheless, Strachey suggests in this work that Shakespeare may have intended it as a piece of disguised political commentary—on the arrest and torture of a wrongfully-accused man, Dr. Lopez, the Queen's personal physician—who was made the scapegoat of an antisemitic witch hunt at the hands of Queen Elizabeth. (An early modern forerunner of the "Doctor's Plot" purges of Josef Stalin.)

"[P]erhaps it is not fanciful to imagine that Shakespeare"—Strachey wrote—"in his tragedy of the Venetian outcast, glanced for a moment, under cover of a piece of amorous jesting, at that other tragedy of the royal physician." 

Writing of Portia's observation about the reliability of statements made "upon the rack," Strachey observes: "The wisdom and the pity of the divine poet exquisitely reveal themselves in those light words." 

Portia was saying what anyone with the least brains and candor ought to admit: that people "enforcèd" will "speak anything." 

As the speaker of an unforgettably visceral poem by Langston Hughes puts it, in defeat—after being subjected to the "third degree" at the hands of crooked cops: "I'll sign the / Paper." Indeed, people "enforcèd" through torture will sign anything. 

There is poetic justice in the U.S. government being unable to complete their own criminal prosecution because they doomed themselves by torturing the defendants. Any frustration they now feel in being unable to successfully convict is entirely of their own making—and indeed, is a fate richly deserved. 

Let it be a lesson to future would-be torturers—that the "information" they obtain through such means will never do them any good. 

But that also doesn't mean the people the government has tortured will go free. Instead, the government seems to have decided to kill them by other means. Instead of securing a capital sentence through a criminal case they can't win—they will simply grind the defendants down slowly through decades of legal pettifogging that never result in a trial. 

Twenty-four years after 9/11, then—it seems most likely at this point that the people suspected of carrying out the attack will die in Guantanamo without ever seeing the inside of an actual courtroom. 

The government will get its execution, then—but it's an execution by slow inanition in an off-shore dungeon. The type of execution that was used against Count Ugolino. 

And meanwhile, of course—there will be no criminal charges at all brought against the people who ordered these men to be tortured—who tortured other men too, and detained them without charge or trial for decades, or confined them in black site dungeons—"men as innocent as I am [...] pent in a cold unjust walk between steel bars," as Hugh MacDiarmid once wrote...

And here we see the corruption of justice in its most hideous form—the double standard that permits the government to kidnap and falsely imprison people with impunity—as the Bush administration did in Guantanamo; as the Trump administration is now doing again to people in the CECOT prison—or the five men who had already served their sentences in U.S. prisons, whom the administration has now sent—with the Supreme Court's blessing—to a secret prison in the African country of Eswatini. 

Ah—the administration claims—but those men in Eswatini had actually committed crimes! True, perhaps—but they had already served out their complete sentences. They had paid their debt to society. No government had authority from any court to confine them further. 

But nonetheless, they are now imprisoned for nobody knows how long in another country's prison—without charge or trial or contact with their attorneys. 

And the Supreme Court has said—sure, send them there; we don't care. 

And the D.C. Circuit Court of Appeals has said—the government officials, who sent 250 innocent men to be imprisoned and tortured in El Salvador, will face no consequences for doing it; even though they defied a court order in doing so—indeed, the Appeals Court said—the district court is not even to be permitted to inquire into whether the government officials should face consequences for these actions. 

Who signed such an opinion, and why? It was Judges Katsas and Rao. Who argued in a similar recent piece of litigation that the courts should have no right whatsoever to second-guess the Trump administration's decisions to send people in secret—without charge or trial—to a forever-prison in El Salvador? That was Judge Oldham of the Fifth Circuit. 

Oh Rao; Oh Oldham—you "stand for all, the hypocrisy, falsity, and callousness of the law," as Hugh MacDiarmid elsewhere wrote. 

Why are these judges issuing such abhorrent decisions—which make a mockery of the U.S. Constitution, and its promises of habeas corpus and due process? 

Because they are auditioning before an audience of one. They want to be Trump's next pick for the Supreme Court. And they know that the fastest way into Trump's good graces is to show you have no principles or scruples whatsoever—that you will put party and loyalty to the president above even the most basic human rights of the accused. 

Elect a sociopath to be President—and they reward sociopaths. And so, one quickly starts to see the corrupting rot of sociopathy extend throughout the body politic—including the judiciary. It spreads like gangrene—including, as Edgar Lee Masters once wrote in a poem—into the very blind-folded eyes of the statue of Justice. 

The eye-balls were seared with a milky mucus;

The madness of a dying soul

Was written on her face

But the multitude saw why she wore the bandage.