Wednesday, December 28, 2005

Building Nothing Out Of Something

Matt Yglesias links approvingly to praktike's lament about the fact that the Bush administration's illegal circumvention of FISA will likely provide fodder for defense attorneys who will use such unlawful actions to make life difficult for prosecutors pressing cases against certain terrorist defendants. The problem, as noted by prak, is that information gleaned from the illegal wiretaps/surveillance will likely be inadmissible and could create a chain reaction of excluded evidence - where such non-wiretap based evidence was obtained as a result of information learned through the illegal surveillance. Former prosecutor ReddHedd at Firedoglake has more on the hardships the Bush team just saddled the various US Attorneys with (via Laura Rozen).

Matt takes the analysis one step further, though, and points out that this pattern of violating Constitutional law, governmental regulations and various statutes is creating a splintered legal regime that will ultimately tie itself into knots:

This is one big underappreciated problem with both the illegal surveillance program and the parallel system of illegal detentions and illegal treatment to which detainees have been treated. A counterterrorism policy divided against itself cannot long stand, and our efforts to fight terrorists can't remain half legal and half illegal on an enduring basis.

The reason is that the illegality of the unlawful operations winds up poisoning the operations of the normal legal process, as we're seeing today, rendering it increasingly ineffective and forcing more and more things to be pushed into the "off the books" illegal side of our policy. You can't, in the long-term, suspend due process and normal legal procedures "just a little." Once you reach a critical mass of outside-the-law activities, their scope will keep on expanding unless you reach a point where you're prepared to disavow them entirely....If the threat of terrorism were a temporary emergency likely to end in a year or two, this might not be the case, but that's obviously not the circumstances we face -- we're looking at a quasi-permanent situation here, so unless our means of coping with it can be brought into the ambit of the law, the corrosive effects will keep spreading for decades.
For those interested, I discussed the legal ramifications of rendition and extra-judicial detention in a two part series on American Footprints back in February (Part One and Part Two). These posts were thorough and, in typical fashion, slightly longish (as a lawyer, I still get stuck in the "paid by the word mode" of writing), so if you're looking for the quick and dirty, below is the most relevant excerpt (quoting from Jane Mayer's piece in the New Yorker):

Fruit Of The Poisonous Forest

The lawyers lurking about this site might be familiar with the evidentiary rules that prohibit using information and evidence obtained from unconstitutional searches...even if the information is probative (though there are certain exceptions). Evidence obtained in such a manner is deemed "fruit of the poisonous tree," and thus barred from admission in court (also see "the exclusionary rule"). As you can imagine, confessions and other statements made under the duress of torture and/or abuse, especially in unconstitutional detention centers, are likely inadmissible, as is any other evidence gained as a result of such confessions. This has raised obstacles to pursuing legal remedies in many of these cases.

Similar problems complicate the case of Khalid Sheikh Mohammed, who was captured in Pakistan in March, 2003. Mohammed has reportedly been "water-boarded" during interrogations. If so, Radsan said, "it would be almost impossible to take him into a criminal trial. Any evidence derived from his interrogation could be seen as fruit from the poisonous tree. I think the government is considering some sort of military tribunal somewhere down the line. But, even there, there are still constitutional requirements that you can't bring in involuntary confessions."
There are other procedural issues as well. Namely, how do you produce witnesses that are being kept in unofficial detention centers operated outside the purview of US laws? You just can't wheel them in and out of court while you are pretending that they remain outside the reach of US law.

The trial of Zacarias Moussaoui, in Alexandria, Virginia - the only U.S. criminal trial of a suspect linked to the September 11th attacks - is stalled. It's been more than three years since Attorney General John Ashcroft called Moussaoui's indictment "a chronicle of evil." The case has been held up by Moussaoui's demand - and the Bush Administration's refusal - to let him call as witnesses Al Qaeda members held in government custody, including Ramzi bin al-Shibh and Khalid Sheikh Mohammed. (Bin al-Shibh is thought to have been tortured.) Government attorneys have argued that producing the witnesses would disrupt the interrogation process.

Similarly, German officials fear that they may be unable to convict any members of the Hamburg cell that is believed to have helped plan the September 11th attacks, on charges connected to the plot, in part because the U.S. government refuses to produce bin al-Shibh and Mohammed as witnesses. Last year, one of the Hamburg defendants, Mounir Motassadeq, became the first person to be convicted in the planning of the attacks, but his guilty verdict was overturned by an appeals court, which found the evidence against him too weak.
In addition to these evidentiary barriers, we have been inadvertently creating a class of prisoners that exist in legal purgatory, beyond the bounds of what we are familiar processing, or perhaps have the capability to resolve in an acceptable manner.

...the Bush Administration, having taken so many prisoners outside the realm of the law, may not be able to bring them back in. By holding detainees indefinitely, without counsel, without charges of wrongdoing, and under circumstances that could, in legal parlance, "shock the conscience" of a court, the Administration has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world....

Since September 11th, as the number of renditions has grown, and hundreds of terrorist suspects have been deposited indefinitely in places like Guantanamo Bay, the shortcomings of this approach have become manifest. "Are we going to hold these people forever?" Scheuer asked. "The policymakers hadn't thought what to do with them, and what would happen when it was found out that we were turning them over to governments that the human-rights world reviled." Once a detainee's rights have been violated, he says, "you absolutely can't" reinstate him into the court system. "You can't kill him, either," he added. "All we've done is create a nightmare."
Transactional Costs

Torture, rendition, and extra-jurisdictional detentions thus have many hidden costs. They complicate legal proceedings in terms of producing evidence and witnesses for those defendants within the mainstream legal system, make prosecution of others outside the normal track nearly impossible, create a class of prisoners that exist in a state of limbo with no resolution of their status on the horizon and diminish our moral authority in the eyes of a world. Oh yeah, and on top of all that, torture isn't even particularly effective as a source of information in the first place.
In an unrelated matter, I am considering pressing charges against Yglesias for stealing the title to one of my prior posts. Lucky for me, I won't have to rely on torture, rendition, the suspension of due process or illegal surveillance. On the other hand, he might be able to evoke the Modest Mouse defense. We'll just have to wait and see.

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