More and more military prosecutors are refusing to prosecute "enemy combatants" in the terror war. Why? Not because some of these combatants are innocent. Many are not. But because many have been subjected to torture by the U.S.. From the WSJ today (subscription only, alas):
When the Pentagon needed someone to prosecute a Guantanamo Bay prisoner linked to 9/11, it turned to Lt. Col. V. Stuart Couch. A Marine Corps pilot and veteran prosecutor, Col. Couch brought a personal connection to the job: His old Marine buddy, Michael "Rocks" Horrocks, was co-pilot on United 175, the second plane to strike the World Trade Center on Sept. 11, 2001.
The prisoner in question, Mohamedou Ould Slahi, had already been suspected of terrorist activity. After the attacks, he was fingered by a senior al Qaeda operative for helping assemble the so-called Hamburg cell, which included the hijacker who piloted United 175 into the South Tower. To Col. Couch, Mr. Slahi seemed a likely candidate for the death penalty.
"Of the cases I had seen, he was the one with the most blood on his hands," Col. Couch says.
But, nine months later, in what he calls the toughest decision of his military career, Col. Couch refused to proceed with the Slahi prosecution. The reason: He concluded that Mr. Slahi's incriminating statements - the core of the government's case - had been taken through torture, rendering them inadmissible under U.S. and international law.
The Slahi case marks a rare instance of a military prosecutor refusing to bring charges because he thought evidence was tainted by torture. For Col. Couch, it also represented a wrenching personal challenge. Laid out starkly before him was a collision between the government's objectives and his moral compass.
The critical paragraph in the story for me is the following:
In the following weeks, Mr. Slahi said, he was placed in isolation, subjected to extreme temperatures, beaten and sexually humiliated. The detention-board transcript states that at this point, "the recording equipment began to malfunction." It summarizes Mr. Slahi's missing testimony as discussing "how he was tortured while here at GTMO by several individuals."
Remember the missing critical Padilla DVD? Recall that David Hicks has been put under a gag-order against discussing the torture techniques used against him by the US? Evidence is "disappeared." Detainees are gagged. Verdicts are pronounced based on testimony procured through torture. Col Couch is not stupid. He must also know that using evidence procured by torture is a war-crime. Every military prosecutor tasked by Bush and Cheney to prosecute torture victims is being set up as a war criminal. Bush and Cheney, meanwhile, secured their own legal immunity in the Military Commissions Act last year.
Under this president and vice-president, we are beginning to live in a banana republic.