The Torturers' Poor Memories

The lack of a speedy trial and the government's cavalier attitude about it also were made known last week when the lead FBI investigator involved in the post-torture interrogations at Gitmo asserted 199 times in one day under oath that she could not recall what she saw and heard 20 years ago during interrogations in which she participated.

Here is the government's problem: When the government plans to use the defendant's own words as evidence against him and the defense counters that the words were extracted under or due to torture, the government must prove beyond a reasonable doubt and to a moral certainty -- the highest standard of proof in American law, the same standard for proof of guilt in criminal cases -- that the words were uttered voluntarily.

The court is addressing two categories of words -- those articulated during torture, and those articulated afterward. Defense and government psychiatrists agree that victims of prolonged torture will say what they think the questioner wants to hear long after the torture has ended, just as victims during torture will say what they think the torturer wants to hear.

Yet, when the torturers have forgotten what they heard or said, when they have intentionally or negligently destroyed records of the torture, they have made it nearly impossible for the government to prove voluntariness beyond a reasonable doubt.

Evidence extracted during or from torture is inadmissible in all American courts, civilian and military. Torture is criminal under federal law and all 50 states' laws, no matter its purpose or its location. Government lawyers are not permitted to whitewash torture without confronting serious ethical consequences.

The Bush/Cheney torture regime and its Devil's Island at Gitmo are among the darkest events perpetrated by a modern American presidency. Far from preserving, protecting and defending the Constitution -- as Bush and Cheney both swore to do -- by destroying the free will and personhood of their victims, they have undermined the values upon which the Constitution is based.

Those values are articulated in the Declaration of Independence and in the Constitution's Ninth Amendment. Taken together they reflect the unanimous public understanding of the revolutionary generation -- those who fought the war for independence and those who crafted the founding documents -- that our rights are natural to our humanity, they are indefeasible, and they are permanent. And the sole purpose of the rule of law is to protect our rights.

Why do we repose the safekeeping of our rights into the hands of those who destroy them?

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To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.