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Frying the Small Fish

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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July 26, 2008

(Originally posted on DailyKos.)

There’s a telling scene near the beginning of The Dark Side, Jane Mayer’s indispensable chronicle of the Bush Administration’s descent into torture and criminality. Shortly after the September 11 attacks, CIA Director George Tenet was advised that that CIA had followed two of the hijackers into the United States in 2000, and then dropped the trail — without alerting the FBI to their presence in the U.S. “Upon hearing the news,” Mayer reports, Tenet “reeled back in his chair and groaned. ‘We’re fucked,’ is all he said.”

Well, yes. But who? Certainly not Tenet: after failing to detect one grave threat, then helping to “slam dunk” another (manufactured) one onto the American public, Tenet rode out of town with a $4 million book advance and a Presidential Medal of Freedom. But what about the rest of us?

There’s a sense in which this week’s lamentable proceedings in the military commission trial of Salim Ahmed Hamdan can be traced to the CIA’s pre-9/11 failures. It was the 9/11 attacks that provided the impetus for Cheney and Tenet and Rumsfeld to abandon our nation’s historic commitment to human rights and the rule of law and steer a course for “the dark side.” It was in response to the attacks that those high government officials enlisted unscrupulous lawyers to disfigure the Constitution and international law and, in Mayer’s words, to make “torture the official law of the land in all but name.” And once the United States had become a regime of torture, there was a need to devise a legal system in which the fruits of that systematic cruelty could be used in court — while its methods were concealed from the public.

Hamdan’s trial is the nation’s first war crimes tribunal since the Second World War — a momentous and historic event that, after its first full week, left observers scratching their heads. After seven years of false starts and legal setbacks, with the entire world watching to see if the United States can deliver justice to terrorism suspects, the U.S has chosen to inaugurate these commissions by targeting a marginal figure — and a cooperating witness, to boot. All week, investigators from the FBI and the military took the stand and described Hamdan as “polite,” “cordial,” “cooperative,” “civil,” and even “amiable.” In dozens of interrogations with dozens of investigators, Hamdan willingly described his role as a driver for Osama in Laden, drew maps of Bin Laden’s safe houses and training camps, took agents on tours of those locations in Afghanistan, identified scores of Al Qaeda figures from photo arrays, and provided evidence that was directly helpful to the FBI in its investigation of the USS Cole bombing. Each of these witnesses testified that there was no evidence whatsoever linking Hamdan to the planning or execution of any terrorist attack.

At no time during any of these interrogations was Hamdan — a man with a fourth-grade education — advised that his cooperation and assistance could be used to incriminate and punish him — a circumstance that would exclude all of those statements from any civil or military trial in the U.S. In defending the military commissions’ elimination of the right against self-incrimination, the Bush administration and its defenders have made the claim that our soldiers cannot be expected to provide Miranda warnings in the heat of battle. But that hypothetical is a complete and utter fallacy. Hamdan was not interrogated on a battlefield or in a cave, but in an air-conditioned trailer, thousands of miles and many months removed from any battle. In one particularly poignant instance, Hamdan sat on the floor with his Arabic-speaking FBI interrogators, wept with gratitude after being allowed to call home for the first time, wished the agents a safe journey, and hugged them as they departed. Six years later, the information he shared with those investigators is being used to convict him.

There were glimpses of “the dark side” in this week’s testimony, particularly on Friday, when Hamdan’s lawyers introduced a classified document confirming that on the very same day that Hamdan had provided helpful information to FBI agents, he was awoken at midnight by an “agency” that could not be named, and subjected to interrogation techniques that could not be described. It appears that this entire trial will be conducted without acknowledgment that the CIA even exists. This is a convenient legal fiction for the government, allowing prosecution of the alleged crimes committed by the detainees, without any discussion of the crimes committed against them.

The final witness of the week provided one of its most memorable lines. FBI Special Agent George Crouch was asked by the defense whether he would be surprised to learn that while Hamdan was standing trial at Guantanamo, other more senior members of Bin Laden’s security detail, including his chief bodyguard who had facilitated his escape fter 9/11, had been released from Guantánamo without ever being charged. Crouch responded: “Nothing surprises me any more.”

I know the feeling.