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Monday, September 8, 2008

Supreme Court Ruling Put Marine JAG in Moral Quandary

From the Florida Bar News: The Supreme Court's grant of civil rights to unlawful enemy combatants has placed the U.S. Military and this Marine JAG in a severe moral quandary. The issue--How can a prosecutor criminally try a defendant (a terrorist) with evidence obtained by duress or coercion (of even the slightest degree)? The "exclusionary rule," a penalty created by our courts, prevents the admission of evidence in a criminal prosecution which was collected in violation of the defendant's constitutional rights. If an unlawful enemy combatant is entitled to certain Constitutional rights (as the Supreme Court says they are), how can a prosecutor both uphold the Constitution on one hand, and attempt to admit battlefield evidence that has been obtained in violation of the Constitution? Lt. Colonel Stuart Couch tells of his experiences at GTMO:
In October 2003, Couch first visited Guantanamo to get the lay of the land, and soon learned business was being conducted in a bizarre way. Waiting to watch an interview with another detainee through a two-way mirror, Couch heard what he called “ear-splitting heavy-metal, razor-blade rock” coming from down the hall. Couch ran toward the music, and found a room lit only by a flashing strobe light. A detainee was shackled to the floor, rocking back and forth and praying.

“These two civilian dudes came out and backed me up and pulled the door behind them. I said, ‘What’s going on here?’ They really wouldn’t answer my questions. To the guy who was escorting me around, an Air Force JAG, I said, ‘What the heck is this about?’ And he goes, ‘That’s approved.’”

While watching the treatment of that detainee, Couch said he had a flashback to his stint in the Survival, Evasion, Resistance, and Escape (SERE) School, where air crew and special operations people learn how to handle themselves if captured.
He explains that one defendant began "singing like a canary" after interrogators made him believe that his mother was going to be arrested and brought to GTMO as well:
Slahi (the defendant) believe[d] he was going to be taken out and executed and buried at Guantanamo. The detainee Slahi was shown a letter on State Department letterhead that indicated his mother and his brother had been picked up and his mother was going to be brought to Guantanamo. The letter was expressing out loud concerns about what they were going to do, because she was going to be the only female at Guantanamo and they were concerned about her safety. The implication being: ‘Hey, we’re going to bring your mom to Guantanamo, and she’s probably going to get raped,’” he said.

Focused solely on what he saw in government documents about Slahi’s treatment, Couch said, “Enough is enough. Torture of a human being is wrong. It’s a violation of our domestic law.
Whether playing "ear splitting" music or showing a terrorist a piece of paper qualifies as torture is a hard sell for many people, especially when you consider the evil and vindictive means of torture devised over the course of human history, but this is not the purpose of this post. The purpose of this post is to illustrate the moral quandary that the Supreme Court has placed upon our armed forces by attempting to force American rules of criminal procedure on what is, in fact, a legitimate war-time intelligence gathering operation. Criminal procedure and war-time intelligence gathering operations cannot occupy the same space simultaneously. You cannot apprehend someone on a battlefield who knows the enemies' battle plans, interrogate them for military purposes, and, at the same time, attempt to admit the information extracted as evidence in a criminal proceeding (that is if you are forced to use traditional rules of criminal procedure). The military has begun recruiting detectives and police for this purpose, but the whole notion of making a criminal arrest on a battlefield is ridiculous.

Is the U.S. military so mighty that we have no need to know of the enemy's plans? Are our tanks and airplanes so overwhelming that interrogation is now obsolete to our armed forces? By granting unlawful enemy combatants access to our criminal courts, the Supreme Court has implied precisely that. As a result, the military and Lt. Couch have been placed in an completely untenable position. Either the military must choose to interrogate detainees through some form of coercion and release them (for all evidence gained by coercion would be excluded in court), or they must begin building a criminal case against the detainee, thereby forgoing all intelligence that might contribute to the most important objective--VICTORY.

To fight and win wars, detainees must be interrogated. As battles rage back and forth and men spill their blood on one side or the other, intelligence on the enemy's location and strength has-more than once-meant the difference between victory and defeat.

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