Marcy Wheeler & David Frakt on Torture & the 9/11 Prosecutions

Marcy Wheeler, aka emptywheel, has an important post up today. She has solicited the opinions of Lt. Col. David Frakt on the issues behind the Attorney General Eric Holder's decision to try Khalid Shiekh Mohammed and four other 9/11 defendants in a New York federal court, and other prisoners in the newly reconstituted military commissions. Frakt was the military attorney for teenaged Guanatanamo prisoner Mohammed Jawad.

Marcy, and key commenter-contributor at her blog, Mary, and others, had been wondering if the decision to move KSM and the others to federal courts wasn't in part due to the fact they could charge the 9/11 prisoners with "material support to terrorism" charges, making it easier to convict them, as such charges have been "used to give wide leeway to prosecutors to charge those for whom intent to commit terrorism may not be easy to prove."

There's much to read and ponder at Marcy's post. I found the discussion of the bogus "laws of war" charges actually brought in the military commissions cases to be very interesting. But in this post of mine today, I'm going to pull from Marcy's blog a portion of Lt. Col. Frakt's comments, which Marcy found particularly important, concerning how the issue of torture was handled by the judge in the military commissions case concerning Mohammed Jawad:

I had another couple of thoughts about why the 9/11 case was transferred to federal court, aside from purely political considerations. The Judge in the case, Colonel Stephen Henley, had made a couple of rulings in the Jawad case (my case) which made the government very nervous. First, he ruled in response to a motion to dismiss that I filed on the basis of torture that he “beyond peradventure” had the power to dismiss all charges on the basis of pretrial abuse of the detainee. Although he declined to dismiss the charges against Jawad, the fact that he would even entertain such a thought was very frightening for the prosecution, since they knew that other detainees had been tortured and abused far worse that Jawad, especially the high value detainees. Judge Henley also indicated that he was declining to dismiss because there were other remedies available, such as giving extra sentencing credit against any ultimately adjudged sentence. Assuming that KSM and his brethren were to get the death penalty, the only remedy for their prior abuse would be to commute the death penalty, the government’s worse nightmare. Also, in response to multiple motions to suppress statements that I filed, he had ruled not only that Jawad’s initial confession was obtained by torture, but that all subsequent confessions were presumptively tainted by the earlier tortured confession. He held that the burden was on the prosecution to prove that subsequently obtained statements were no longer tainted by the earlier torture or coercion. Judge Henley applied the law correctly in each of these rulings, applying well-settled principles of due process from U.S. Supreme Court cases. These rulings provide an opportunity for the defense to put the U.S.’ treatment of these detainees on trial, potentially for months, before ever getting to the merits of the case. And in order for the defense to make comprehensive motions, they would have to be made privy to the full scope of the abuses that had been meted out by the U.S. on their clients and should be given the opportunity to develop such evidence in pre-trial evidentiary hearings, as I did in Mohammed Jawad’s case, including allowing the defendants to testify about the abuses they experienced. Those who claim that this type of sideshow can be avoided in federal court simply don’t understand criminal procedure. The real question will be whether the 9/11 defendants authorize their counsel to make such motions or whether they will continue to seek martyrdom and forgo the opportunity to fully litigate the torture issues. [my emphasis (i.e., emphasis by Marcy Wheeler)]

I would be curious, given Lt. Col. Frakt's suggestion that Judge Henley has provided that "pretrial abuse" is actionable and worthy of remedy, why this was not ruled to be the case in the Jose Padilla proceedings.

US District Court Judge Marcia Cooke, of the U.S. District Court, Southern District, Miami, in an ruling in April 2007 (made without a hearing) rejected Padilla's attorneys' motion for dismissal of Padilla's case due to "outrageous government conduct". That conduct included torture through isolation, profound sensory deprivation, sleep deprivation, use of stress positions, use of drugs, and other indignities. Padilla had been held since June 2002 at the Naval Consoldidated Brig in Charleston, South Carolina as an "enemy combatant". Original charges of constructing a "dirty bomb" had been dropped.

In Judge Cooke's ruling, she accepted "for the sake of this Order" Padilla's claims of mistreatment to be true, but the abuse supposedly did not amount to sufficient outrageous conduct to throw the case out of court. Why? Because the government claimed it would not use any evidence obtained from interrogations while Padilla was in the brig, i.e., from the time when he was tortured. Therefore, legally, Padilla supposedly has no "remedy" against the government.

It will be interesting to see how events unfold in the KSM et al. trial. I hope Lt. Col. Frakt will turn out to be correct, regarding his assumption the government has a lot to risk re bringing out in court the torture issue.

Meanwhile, I thank Marcy/Emptywheel for her excellent reporting, and Lt. Col. Frakt for his standing up for what is right, and fighting this all-important good fight. (If you haven't yet, do spend some time reading Frakt's closing arguments in the Jawad case. Many consider them among the most powerful words yet spoken on the injustice of the Bush/Cheney/Rumsfeld-initiated military commissions system, a system that continues in only slightly modified form in the Obama years.)