Commentary: Torture and detention equal justice for none

A detainee stands outside a fenced recreation area at the Camp Delta detention facility in Guantanamo Bay, Cuba, on July 7, 2004.
A detainee stands outside a fenced recreation area at the Camp Delta detention facility in Guantanamo Bay, Cuba, on July 7, 2004. Pete Souza / Chicago Tribune

Are we really going to skip the trial and imprison a man forever?

Wait a minute. I'm sure I haven't got that right. Just yesterday, I was reminded — if I have a phone, I have a lawyer. Much longer ago, every day, I stood next to a chum who lisped his Rs into Ws and pledged allegiance to a republic for Richard Stands that promised justice for all. And it's written down, in black and white, that everyone has a right to a fair trial.

But a recent piece in the news made me stop and ask myself this question. Apparently there are some detainees on Guantanamo who are considered so dangerous that they cannot be released. But we can't learn the truth about their acts because the techniques used to question them constituted torture and can't be admitted as evidence at trial. So how do we know they're dangerous? Don't we deserve to know the truth? Where's our justice?

What it comes down to is that with the use of harsh interrogation techniques we spent big capital — a reputation as a fair and decent people — and we still don't know what an alleged terrorist did or didn't do. It gets worse. Now we're presented with the proposition of detaining a man indefinitely-violating one of our most basic principles — because someone thinks he's a bad guy. The detainee clearly loses, but so do we.

Here's the story. Over six years ago, and I thank the New York Times' Bob Herbert for bringing this to light, a kid named Mohammed Jawad, age 12 or 14 or 16 depending on who you ask, was seized in Kabul by Afghan forces and handed over to US custody. Under harsh interrogation — which included hooding and slapping and shoving him down a flight of stairs and sleep deprivation accomplished by moving his cell eight times a day for 14 days — he confessed to throwing a grenade and seriously injuring two US soldiers and their Afghan interpreter.

Jawad has been held for six years in solitary confinement, first at Bagram and later at Guantanamo, during which time he tried to kill himself by banging his head against a wall. The Army reservist who was the lead prosecutor was so horrified by the particulars of the case that he switched sides, and a military judge has ruled Jawad's confession, evidence determined to have been obtained under torture, inadmissible. Now the Obama administration opposes his release, indeed makes a case for his indefinite detention, based on the same flawed evidence.

The treatment of Mr. Jawad flies in the face of the rule of law, one of the bedrock ideals of civil society. It raises the question whether the interrogation techniques used in his case were to gain information or exact revenge. If the goal was the first, Jawad's case well demonstrates — for both practical and legal purposes — that torture doesn't work.

If it was the second, I refer those who support such a stance to the account of atrocities committed by the Nazis in Czechoslovakia following the assassination there of SS Obergrupenführer Reinhard Heydrich. Before we get distracted here, let's recognize that sleep deprivation is not the equivalent of the transport of thousands to death camps and the wholesale massacre of a village. The point is that the account from Czechoslovakia fills out more fully the unbridled possibilities of a state policy of revenge.

But it was the comment of one of Mr Herbert's readers from Canada that got me thinking. I'm taking her remarks on faith, though even if they're inaccurate I think they illustrate the gross abuse of public trust likely to result from any number of detainee cases in Guantanamo. What it comes down to is that the more that evidence obtained under torture places a detainee's case outside the courtroom, the less we will see justice done.

This reader pointed out that as a result of the grenade Jawad threw, a US Army medic died. She also stated that Jawad is a Canadian and his family had been al-Qaida supporters to the point where the father and two sons flew to Afghanistan to fight the Americans.

Here let me say a few things about my personal perspective. Earlier during the wars in Afghanistan and Iraq, I was a doctor in the Pentagon. For me all 2.5 million Americans in uniform were patients, and the loss of any single individual is still a sharp blow. The loss of a medic cuts especially deep. I want justice.

To do justice is to get the facts — are there any available outside of what was learned through torture? We should try Jawad, get a verdict, and if he's guilty sentence him. One might argue that the guy's already been through enough, and therefore served any sentence. But if he's not guilty, he's not. If his case gets thrown out of court because the only evidence was obtained illegally, the public should know.

We elect those who make laws and those who execute them. We ought to know something about what those laws can and can't do. If we need new ones it's up to us to say so, and to see them passed by elected representatives in an open and deliberative process. If there's anything to be learned from Guantanamo, it's that little good comes from rules made up as we go along.

As a people, we've elevated the value of justice for all such that generations of American schoolchildren have repeated these words every day. But in the case of the medic and Jawad we're never going to get there. The collection of evidence has been so bungled we're never going to see justice done. Instead we've been doubly ill-served by acts of state-sanctioned brutality committed in our own good name.

It's time for the Obama administration to restore the commitment to justice that Americans expect of their government. As a candidate Mr. Obama showed us he gets it — what binds us together as a nation isn't a single shared religion or ethnic identity. It's our commitment to fair play and getting it right. President Obama is in charge and what was earlier an inspirational message is now his job. And that is to give the medic and his comrades, Mr. Jawad, and the public their day in court.


Dr. Andrea Meyerhoff is a member of the faculty of Johns Hopkins School of Medicine and a consultant in biodefense and drug development. She served as FDA Director of Counterterrorism from 2001-03 and Pentagon Director of Medical WMD Defense from 2003-04.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

Related stories from McClatchy DC