The “confessions” of Sheikh Muhammad presented before the Combatant Status Review Tribunal at Guantanamo Bay provide valuable insights into possible terrorist threats and thinking, and deserve to be taken seriously on that basis. But there are aspects of the confessions that are very troubling for other reasons that counsel taking them with caution as well.
Statements that result from torture (admitted waterboarding in this case) are never reliable, and should never be accepted as a basis for judgment in any type of judicial proceeding, even the special CSRT procedure established at GITMO to assess the status of suspected terrorists. These due process problems are compounded by the fact that Sheikh Muhammad, along with an undetermined number of other suspected terrorists, was held for many months in a “secret prison” without charges being filed against him, and subject to extreme forms of isolation and interrogation. Torture and arbitrary, indefinite detention would make any statement or confession unusable in a regular US court proceeding. The fact that these practices are being permitted in the context of the CSRT determinations places a major cloud on how the detainees and other suspected terrorists more generally. In the name of fighting the “war against terrorism,” and in order to deal with suspected terrorists expediently, we are allowing ourselves to commit torture and to eliminate some of the most important judicial protections that we associate with the “rule of law.”
The elimination of habeas corpus remedies in the REAL ID Act (for refugees) and in the Military Commissions Act (for terrorist detainees) is another victim of this process, and another indicator of how far our government seems willing to go to restrict basic rights and protections to stop terrorists.
It is important for us to look at these problems with how we are dealing with the terrorist threats, not just at the subjects of the “confessions” themselves. The Department of State has just put out its annual Country Reports on Human Rights assessing compliance by foreign governments, and placing great stress on how these governments observe the basic principles of democracy and the rule of law. How would our own government fare if subjected to the same analysis? The process surrounding how Sheikh Muhammad’s confessions were obtained, including the use of torture and long-term secret imprisonment, and the CSRT process that substitutes ex parte judgments by the military for basic due process rights, suggests this judgment would not be a very positive one.