La Question

 Yesterday—fourteen years after charges were initially filed in the case—a military judge in Guantanamo finally threw out evidence in the Khalid Shaikh Mohammed case that had been compromised by torture. 

Obviously, this is a setback the government richly deserves. One only wishes the officials responsible for the torture program were being sanctioned in some more lasting way. 

If the government had respected from the outset the most basic canons of procedural justice, they could have won convictions against the alleged 9/11 conspirators years—if not decades—ago. 

Instead, the U.S. government overturned the fundamental principles of our legal system by reintroducing a form of deliberate, overt judicial torture—"La Question," as Henri Alleg would call it. 

Congress, in its infinite wisdom, then outlawed transferring the victims of this program to U.S. courts to stand trial—trapping them indefinitely in a parallel legal system of dubious constitutionality, where they have been stranded in a legal twilight zone for the last quarter century. 

Clear cases, each time, of unthinking populism and the aroused instinct for vengeance of the community overcoming what we thought were fixed principles of modern justice. 

The constant deprivations of rights and deviations from our own stated legal fundaments have been so egregious that it gets harder each year to even remember what these men were initially charged with. 

Oscar Wilde's words never felt more true: "As one reads history, [...]one is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted[.]"

After all, the existence of violent threats to organized society we take as a given and a historical universal. The question of civilization is how a given society chooses to respond to this criminal violence—with legality, or with mere reciprocal criminality. 

The United States, in its treatment of these prisoners, obviously chose the latter path. 

We therefore deserve to have all that evidence thrown out. 

As the attorney for the defendant put it: this decision aptly "serves as a civics lesson for why the government shouldn’t engage in such shameful conduct." 

The reason we don't and shouldn't allow information obtained through torture to be used against someone in a courtroom is at least two-fold: 

On the one hand, we don't want to reward the government for violating people's human, legal, and constitutional rights. Barring evidence obtained as "fruit of the poisoned tree" is therefore one basic safeguard we have against incentivizing the state to commit the same barbarities again. 

But secondly: evidence obtained through these means would seem to have little to no epistemic value. As Portia puts it in The Merchant of Venice: "you speak upon the rack / Where men enforced do speak anything."

Lytton Strachey, in his book Elizabeth and Essex, suggests that Shakespeare, in this apparently innocuous bit of romantic badinage, may have actually intended a profound, if glancing, critique of the judicial atrocities of his time—such as the crown's torture and persecution of the innocent Dr. Lopez. 

As Strachey writes: "[P]erhaps it is not fanciful to imagine that Shakespeare, 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."

He goes on: "The wisdom and the pity of the divine poet exquisitely reveal themselves in those light words." 

It's hard to know what any of us would do under conditions of torture. We must hope we'll never face it. 

But the writers who have described the experience most intimately—Henri Alleg, or Arthur Koestler, in a scene depicting the Nazi political terror in his Arrival and Departure—describe the ordeal as steeling the victim to a kind of resistance that transcends the exercise of mere will. 

Both writers describe a psychological stage in the torture where the question of whether to "give in" vanishes—and all that is left is an adamantine refusal to reward one's tormentors and humiliators that is too much a given even to be experienced as a conscious choice. 

Yet another reason why torture—in addition to its inherent evil and inhumanity—is also a very poor instrument for getting at the truth.

Sartre, in his introduction to a book about torture in French police custody during the Algerian war, compared torture to a form of "gangrene," which—once introduced in one segment of the legal system—will eventually spread to others. 

We can obviously see this "gangrene" gnawing away at the case we are discussing today. 

Maybe once upon a time the U.S. government had a legitimate criminal indictment on its hands. Maybe they could have secured their conviction years ago if they had played by the rules. 

Instead, they tortured people. And now, decades later, the "gangrene" introduced by that first violation is still rotting away the limbs of that criminal case—with ever more evidence having to be lopped off the government's case because it is found to be tainted by the same act. 

It should be obvious that, in addition to the victims of the torture policy itself, this also does a profound disservice to the families of people who died on 9/11. 

If the government had actually honored legal and constitutional principles, the 9/11 victims could have had justice decades ago. 

Instead, we introduced a gangrene of torture that is still eating away at any hopes for eventual judicial resolution of the case to this day.