More torture

Rachel Morris flags my post from earlier today:

Good questionfrom Brian Beutler:

"The relevant question to my mind is whether the administration is hampering the process [of releasing Guantanamo detainees] so that some of these guys don't someday describe the torture techniques used against them to a lawyer or a judge or the media. If that's the case, then you can be sure the administration will do anything in its power to keep these guys in military custody for as long as possible."

Actually, the government has already made this very argument in court:

"The Justice Department argued this point explicitly last November, in the case of a Baltimore-area resident named Majid Khan, who was held for more than three years by the C.I.A. Khan, the government said, had to be prohibited from access to a lawyer specifically because he might describe the “alternative interrogation methods” that the agency had used when questioning him. These methods amounted to a state secret, the government argued, and disclosure of them could “reasonably be expected to cause extremely grave damage.” (The case has not yet been decided.)"

Sure. That much is well established. I actually used that very quote from Jane Mayer's story in my first post. I guess I was a little bit unclear. My concern is as much with their legal arguments as with their actual motives. So here's a second attempt at it:

It seems pretty clear to me that this has nothing to do with national security, and everything to do with the administration trying to save legal and political face. If it can be shown that the administration is holding people in military prison (at least in part) because they're worried about the legal or political fallout if and when these prisoners are released and start talking, are they committing an additional crime?

Comments

[JimPortlandOR]

Yes, this is just as sure as the Pope still being Catholic and bears crapping in the woods.

[Phill]

It is an interesting an important question because it may be one of the lines eventually used to bring the Bush administration to justice.

It is pretty certain that the administration will issue pardons for any acts that they feel that they might be at risk of prosecution for before leaving office. Kidnapping is a continuing offence however and pardons can only be given for offences already committed.

A similar situation existed in Chile. The generals granted themselves pardons but were eventually prosecuted by claiming that the many people that they murdered who were never identified were in law kidnapped and that the kidnapping is in effect continuing.

It all depends on what your view of law is here. Lawyers tend to look at law from an excessively litteral point of view. They miss the political dimension. In theory the President can grant pardons, in practice the interpretation of the pardons granted depends on future administrations.

The right frequently asserts that it would be considered a national outrage if Rumsfeld, Bush or Cheney were to be arrested and charged with war crimes when travelling outside the US. Perhaps, but there is no constitutional requirement for future Presidents to lift a finger should that occur.