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Tortured Logic: In The Government’s Own Words

Christy Hardin Smith

The torture memos produced by the OLC were never meant to be seen and parsed by the public.

These memos used incredibly tortured logic to justify acts which, in prior wars, the United States prosecuted as war crimes.

The ACLU has put together a video of these words of tortured logic being read aloud.  Watch it.

The words you are hearing were written by and for the US government. As guidance for governmental agencies acting in all of our names.

The ACLU is asking that you send these words to Attorney General Eric Holder.  Ask for accountability on torture. You can do so here.

These OLC memos, along with a wholesale disregard for the rule of law, have led the US to what Judge Colleen Kollar-Kotelly recently said in a memorandum opinion in the Al Mutairi case (full opinion here in PDF format):

Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi's conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi's described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi's version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi's petition for habeas corpus.

The flimsy, insufficient evidence question has come up time and time again in detainee habeas cases, where the government has only tangential-at-best information about someone we have held for years. 

Honestly, Al Mutairi doesn't exactly sound like a completely innocent "babe in the woods."  Especially when you see how many problems Judge Kollar-Kotelly has with his version of events.  He has that feel that I used to get from every skeezy defendant who wouldn't have known the truth if it hit him in the ass.  But just because someone was skeezy doesn't make them guilty of every crime. 

You are supposed to prosecute in the name of justice, not just because you can.


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As the judge says pointedly, it is not up to Al Mutairi to prove his innocence.  It is up to the government -- as it is in all such cases -- to demonstrate by a preponderance of the evidence the defendant's actions point to, in this case, an association with al Wafa or al Qaeda.

There must be a connection sustained by evidence to justify prosecution.

What is baffling?  Al Mutairi was apprehended by the Pakistanis and turned over to US custody on or around November 21, 2001.  He filed his habeas petition on May 1, 2002, making his the oldest habeas petition for any US detainee.

During these many years of detention, and all the subsequent hearings, proceedings, filings, defense evidentiary challenges, and up to and including demands directly from Judge Kollar-Kotelly -- no newbie to intel proceedings, having just finished a term as the head of the FISA Court -- for particulars on evidentiary issues of questionable detail and firmness?  That evidence still isn't there.

That evidence, after all these many years, has neither been firmed up nor been corroborated by additional intelligence gathering or other investigative means. We have bupkis.

Who are we and what have we done with competence and a commitment to justice?  

ACLUblog quotes a human rights lawyer who gets this exactly right:

[P]rinciples don't really matter much in times of peace. It's easy to maintain your ideology when everything is stable and life is good; it's during times of conflict that holding fast to your values really matters. It is conflict that truly tests your beliefs.

We have failed -- and continue to fail -- that test.  And we will continue to do so unless and until we hold those at the top levels of government responsible for the actions taken at their direction.


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Christy Hardin Smith is a "recovering attorney" and has been blogging with Jane Hamsher at FireDogLake since 2005, and she plans to keep making the world a little better for her daughter, one issue at a time. See her full bio here.

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