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The "Bush-Tortured" Excuse for Indefinite Detention

Earlier this week, I wrote about the fictitious excuse being offered to justify why Obama is continuing the indefinite detentions and military commissions which defined the Bush/Cheney Guantanamo detention scheme:  it's Congress' fault.  Today we have a new excuse:  it's Bush's fault.  Because Bush tortured some of the detainees, this reasoning goes, Obama is incapable of prosecuting them, yet because many of those detainees are Terrorists and/or Too Dangerous to Release (even though they can't be convicted of anything), he has no real choice but to keep imprisoning them without charges.  Here are the NYT Editors -- even as they criticize Obama's indefinite detention policy -- making this case, one frequently heard from Obama supporters offering excuses for his policy of indefinite detention:

[T]he Obama administration has still chosen to accept the concept of indefinite detention without trial, which represents a stain on American justice. The president made that acceptance clear in a speech in May 2009. To some degree, he was forced into it by the Bush administration's legacy of torture and abuse, which made some important cases impossible to prosecute.

And here's Andrew Sullivan making a somewhat different but related claim, and then going even further, suggesting that the only thing that ever bothered him about Guantanamo was the torture, not the fact that people were being indefinitely imprisoned without a shred of due process:

My fundamental concern has always been humane treatment. When Gitmo was a torture camp, it was indefensible. . . . [Those equating Obama's detention policies with Bush's] omit that the very dilemma - prisoners with no formal charges, no serious evidence, and radicalized by torture and unjust imprisonment - was created by Bush in the first place.  I'd release those against whom there is no credible evidence. But I can understand the security and political concerns of releasing men who could join Jihadists in, say, Yemen.

There's a serious moral flaw in the NYT's reasoning, and two even worse empirical flaws with this excuse-making for indefinite detention.   There are several compelling reasons why the use of torture-obtained evidence is barred by every civilized country for use in prosecution, and has been barred for decades if not centuries.  A primary reason is because the most basic norms of Western morality demand that torture not be rewarded, which is what happens when the fruits of it are admissible in court to prosecute people.  Those who say that Obama is justified in imprisoning people without charges because the evidence against them was obtained via torture and is thus unusable in court are repudiating this long-standing Western moral principle by justifying imprisonment based on evidence obtained by coercion (we know they're guilty because of the evidence we got from torture, so we have to detain them)

But the moral repugnance of this position is even worse than that:  at least people who are prosecuted using torture-obtained evidence have the opportunity to defend themselves in court and to call into question the reliability of that evidence.  But what Obama is doing -- and what some of his supporters are defending -- is to deny detainees even that opportunity. Obama is keeping these people imprisoned without any charges, and then pointing to secret torture-obtained evidence to justify that imprisonment.  He's not even prosecuting them using torture-obtained evidence.  He's going beyond that:  he's imprisoning them without bothering to prosecute them, while his supporters publicly claim that we know they're guilty -- or "dangerous" -- by citing untested, unseen evidence that the government claims can't be used because it was coerced.   Anyone who supports indefinite detention on this ground is doing something much worse than justifying the use of torture-obtained evidence to prosecute someone:  they're justifying imprisonment without trials based on evidence they know -- and which they admit -- was obtained by torture.

If you're someone who wants to claim to find torture repugnant: fine.  But if you simultaneously justify the imprisonment of people based on evidence obtained by torture, then your protestations are meaningless.  Wanting to use evidence obtained by torture is functionally incompatible with claims of finding torture morally unacceptable.  After all, what's the point of barring the use of torture-obtained evidence in trials only to then imprison people anyway without trials based on that very evidence?

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Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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