Glenn Greenwald writes:
Yesterday, 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).