Academic

Torture, reliability, and the Ghailani case

By Tung Yin

The Obama Administration's first prosecution of an al Qaeda suspect in a federal court ran into a serious obstacle yesterday when US District Judge Kaplan barred a key government witness from testifying, because the government learned of the witness only as a result of coercively interrogating Ahmed Khalfan Ghailani in a secret CIA prison.  The witness, Hussein Abede, allegedly sold the explosive TNT that Ghailani used to blow up the US embassy in Tanzania in 1998.

The legal issue is a variant of the fruit of the poisonous tree doctrine.  It's not just the evidence (or confessions) obtained illegally that are subject to suppression, but also potentially evidence that the government is directed to as a result of the illegal search or seizure.  The government has to show that the "taint" of the initial illegal search or seizure has been "attenuated."

In US v. Ceccolini, 435 U.S. 268 (1978),  the Court considered a somewhat analogous situation -- though minus coercion or torture.  There, a police officer violated the defendant's privacy rights by conducting a warrantless search of an envelope belong to the defendant.  Months later, another officer used the information obtained in that illegal search to interview a woman who eventually became a key witness against the defendant.  The Court denied the defendant's motion to exclude the woman, because:

The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And, evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live witness testimony than other kinds of. evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.

The difference is that in Ceccolini, the witness's identity was already known to law enforcement, whereas Abede was apparently unknown until Ghailani named him.  Thus, the government was unable to persuade Judge Kaplan that the "taint" of the coercive interrogation had been dissipated.

The consequences are severe, but that is true in any high-stakes criminal case in which a suppression motion is at issue.  If the judge's factual determination is that the taint of the illegal government conduct remains, then the doctrinal conclusion is suppression of the evidence/witness.

What is worth noting, though, is that in the debate over whether torture/coercion is justified, it's a common argument that torture is ineffective because people being tortured will say whatever they need to say to make the torture stop.  Therefore, the argument runs, torture is ineffective because it leads to unreliable information.  It's hard to dispute this as a general matter, particularly if what is being extracted is not actionable information, but an uncorroborated confession.  It's easy to imagine that a person being subjected to waterboarding will admit that he "did it" to stop the waterboarding.

But Ghailani's case suggests that sometimes coerced information may be reliable.  It appears that Abede was prepared to offer seemingly inculpatory testimony against Ghailani.  (Of course, if the government has roughed up Abede, that would be different.  But on the assumption that Abede has not been coerced or mistreated, he would be a reliably inculpatory witness.)  Because of whatever was done to Ghailani, he named Abede.  The government found Abede.  And Abede turned out to have relevant, probative information about Ghailani's alleged role in an act of terrorism that killed dozens of persons and injured hundreds of others.

To be clear, I am NOT arguing that Abede should be allowed to testify or that the discovery of Abede justified the coercive interrogation of Ghailani.  My point is more narrow: arguments against the use of torture, particularly in response to "ticking time bomb" scenarios, leave a gap to the extent they rely purely on the presumption of unreliability of information obtained through torture.  That presumption is a good argument against torture, but it fails in certain cases, including perhaps Ghailani's.  For those cases, the anti-torture position needs more deontological arguments (i.e., "it's just wrong").

Full post as published by The Yin Blog on October 06, 2010 (boomark / email).