“Aside from questions of ethics and morality, torture is illegal. It’s also ineffective.”

“Growing up in a Jack Bauer-ized world, many of my generation have an indelible belief that torture works. There’s a nuclear bomb in Los Angeles, so Kiefer Sutherland has to put a knife through the kneecap of the bad guy, threaten their family, and after some intense moments, the terrorist will give up the location of the bomb. Of course, in the real world, it doesn’t work like that. Aside from questions of ethics and morality, torture is illegal. It’s also ineffective. This was the bipartisan conclusion in the Senate Select Committee on Intelligence report of 2014, based in part on studies done by the CIA itself, which previously eschewed torture in favor of more reliable methods of interrogation. 

Apart from being ineffective, torture is often counterproductive. Many of the detainees subjected to it simply lied to get it to stop. For instance, a detainee named Abu Zubaydah, a Guantanamo detainee who was subjected to lengthy torture, gave false statements about Iraqi weapons of mass destruction that were subsequently used to justify the 2003 U.S. invasion of the country.

However, the legal issues we deal with as defense lawyers go far beyond torture. Take the case of Abd al Rahim al Nashiri, a Saudi accused of masterminding the attack on the U.S. guided missile destroyer Cole in 2000. In addition to torture, his case so far has involved: 1) the government having secret listening devices in defense attorneys’ spaces; 2) the trial being forced to go forward despite having an unqualified defense attorney; 3) the judge trying to get a job with the Justice Department while overseeing the case, resulting in a federal appeals court throwing out more than three years of rulings; and 4) confidential communications between the judge and defense attorneys being inadvertently turned over to the prosecution. And that’s just from one detainee’s case. 

Others have waited nearly two decades without their day in court.”

Please see Aaron Shepard’s op-ed in today’s Los Angeles Times (Feb. 13, 2020), “John Adams would have defended the detainees at Guantanamo Bay.” (Aaron Shepard is a lieutenant commander in the U.S. Navy Judge Advocate General’s Corps.) 

See too: Torture: Moral, Legal & Political Dimensions — A Basic Bibliography