Judge Rules Torture Doesn't Violate Due Process

In a ruling
that anticipates how the government will ignore torture as it tries
alleged detainees in civilian court, Judge Lewis Kaplan rejected Ahmed
Khalfan Ghailani's efforts to get his indictment for contributing to
the 1998 embassy bombings dismissed because he was tortured while in US

As Kaplan argues, Ghailani could only use the Due Process Clause to dismiss evidence collected as a result of his torture.

The Due Process Clause, so far as is
relevant here, protects against deprivations of liberty absent due
process of law. The deprivation of liberty that Ghailani claims may
occur if this case goes forward is his imprisonment in the event of
conviction. In seeking dismissal of the indictment, however, he does
not deny that he is being afforded every protection guaranteed to all
in the defense of criminal prosecutions. Rather, Ghailani in effect
argues that the case should be dismissed to punish the government for
its mistreatment of him before he was presented in this Court to face
the pending indictment.

For a due process violation to result in consequences adverse to the
government in a criminal case - for example, the suppression of
evidence or the dismissal of an indictment - there must be a causal
connection between the violation and the deprivation of the defendant's
life or liberty threatened by the prosecution. That is to say, relief
against the government in a criminal case is appropriate if, and only
if, a conviction otherwise would be a product of the government
misconduct that violated the Due Process Clause. For only in such
circumstances may it be said that the deprivation of life or liberty
that follows from a criminal conviction flows from the denial of due
process. This conclusion thus rests directly on the text of the Due
Process Clause itself.

But since the government is trying Ghailani for his involvement in
the 1998 bombings, rather than for any actions about which they asked
him under torture, the alleged torture is irrelevant to this indictment
(remember, Ghailani was picked up in 2004 in the pre-election scare
about terror). So long as the government relies only on evidence
untainted by the torture, Kaplan argues, then it is irrelevant to this

Of course, the government did hedge, somewhat, about whether they were going to rely exclusively on untainted evidence.

The government has identified one
possible exception: a percipient witness whose identity remains
classified and whose testimony may constitute fruit derived from
statements made by the defendant in response to interrogations while in
CIA custody. The government maintains that there is no basis for
suppressing this potential witness's testimony, and the issue is sub
judice before this Court.

But that's not enough to get this indictment dismissed.

What's perhaps most curious about the
ruling is Kaplan's claim-which he doesn't elaborate-that Ghailani may
have some remedies against his torturers.

If, as Ghailani claims, he was tortured
in violation of the Due Process Clause, he may have remedies. For the
reasons set forth above, however, those remedies do not include
dismissal of the indictment.

The closest Kaplan comes to explaining what Ghailani's remedies
might be is to discuss, abstractly in the context of precedent, what
such remedies might be, leaving aside the question of whether someone
tortured under Cheney's torture program actually has access to those

"[A defendant] is not himself a
suppressible 'fruit,' and the illegality of his detention cannot
deprive the Government of the opportunity to prove his guilt through
the introduction of evidence wholly untainted by the police
misconduct."18 Rather, the proper remedy is money damages or criminal
prosecution of the offending officers.19

Only, he doesn't have access to those remedies, as the Jeppesen and Yoo suits make pretty clear.

I don't know why those whiners are so worried about trying Khalid Sheikh Mohammed in civilian court.

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