The Taxi To The Dark Side

Instead of reviewing American Policy of Torture and its effects on our military,innocents and the so-called war on terror, just rent the DVD "The Taxi To The Dark Side", which won an Oscar for Best Documentary in 2008.

The hook for the film is a young Afghani taxi-driver, who is picked up by an Afghan militia and given over to the U.S. military as the suspect of launching missile attacks on an American base. In fact, the head of the Afghan militia himself was the one launching such attacks and he would hand in random Afghanis to win favor with us. The young taxi-driver is taken to Bagram Air Force base in Kabul, interrogated, beaten, subjected to sensory deprivation, hung by chains across his cell. He dies and his death cetrificate reads "Homicide". The coroner finds that he had his legs pulverized. New York Times reporter Tim Golden follows the case as it winds up the chain of command.

The film expands on this incident to document abuses at Bagram, Abu Ghraib and Gitmo. It features interviews with the soldiers tried for the abuse at Bagram and how they came to be interrogators and what instructions they received. The film also contains interviews with defense attorneys for the Gitmo prisoners and released prisoners.

For someone like myself who follows this story regularly, two new dimensions of the torture question emerge in the film. First is that the CIA developed a scheme based on the work of Canadian psychologists, which sequenced punitive measures into both physical and pschological torture. The images of Lyndie England with a dog collar and leash on a naked Iraqi male is not some random sadistic act but part of a programmed sequence of acts to break down the person's identity. She was simply following orders that included challenging the sexual identity of prisoners. Taken one part at a time, some of these acts technically do not constitute torture but as a sequence they are devastating and are torture by any definition of the term.

The second fact that emerges from the film is a very brief mention of something incredibly important when we consider Eric Holder's actions or lack of actions punishing the responsible parties for these abuses. This has been one of my frustrations with President Obama and it has been vocally shared by civil libertarians. It was well and good President Obama banished torture by executive order but he has not taken any steps to punish any of the culprits including the authors of the torture memos.

What's the one little thing in this film that is relevant to all this--President Bush pressured Congress to pass a bill that included as one of its point a pardon for him, the Vice-President and all members of his Administration and members of the armed forces that had ordered or engaged in torture. That is one of the realities that Eric Holder found on investigating the lawyers in the DOJ.

Which brings us to the trial of Ahmed Khalfan Ghailani, the first former Gitmo detainee to be tried in a civilian court. Ghailani was found quilty of only 1 of more than 280 counts including conspiracy and murder. Even so, he is likely to spend 20 years to life in a maximum security prison. But the fact that his five week trial did not result in more guilty verdicts have caused a collective conservative breakdown.

Daphne Eviatar, senior associate in Human Rights First's Law and Security Program, observed the trial and wrote up a brief account in yesterday's Huffington Post. She writes that anyone who actually observed the trial would have realized that the government never presented any direct evidence that Ghailani intended to kill anyone. Ms. Eviatar writes that it was not surprising that the jurors had a "reasonable doubt" about what Ghailani knew about the conspiracy to bomb the embassy in Kenya and whether he really knew his purchase of a truck and gas tanks would lead to the deaths of all those people.

We have heard the last few days from the usual Bush apologists and torture fanatics that this only proved that the Obama Administration's policy of fighting terrorism and trying terrorists in civilian courts is a disaster. We should recall that these same critics claimed that New York City would be at risk because of the trial, $240 million would be spent on security, and that the trial would provide Ghailani with a soapbox from which he could harangue Americans about jihad. None of this happened. No one even knew the trial was going on and not a single street in Manhattan was closed. Yet, as Liz Cheney cried the Obama administration was "irresponsible and reckless." Former Governor Pataki appearing on Hardball with Prof. Turley went hysterical about the trial and the lack of more convictions. He insisted that the evidence obtained by torture should have been used and he should have been tried in a military commission.

So we are back in the thick of the fight over the Gitmo detainees. Lindsey Graham, who is a big advocate of military commissions, lamented the New York trial and wants the future detainees to be tried in military commissions. This fascination by Republicans with military commissions is bizarre. With the recent plea deal of Omar Khadr, the Canadian child soldier who will spent one year in prison in Canada, the commissions have convicted a whopping 5 persons. In the case that Lindsey Graham hailed--the conviction of Bin Laden's driver--that man only received a 5 year prison sentence. According to the Department of Justice, federal courts have convicted more than 400 people on terrorism-related charges since 9/11. All those convicted are held in supermax prisons.

And then there is the real distrust by conservatives in our own justice system. The trial showcased America's respect for the rule of law by providing a real trial in a legitimate justice system, instead of some show trial. It is disturbing that conservatives find it a sign of weakness to provide a fair trial in a respected justice system. And by relying on our jury system, this is somehow reckless. All these conservatives have expressed a desire for a pre-determined sentence and a symbolic trial. And all the Obama critics have underscored that Judge Lewis Kaplan was wrong for excluding a witness whose identity was discovered through torture in a CIA secret prison and a confession that had been obtained through torture. To me that is truly scary.

Writing in the New York Times, Benjamin Weiser and Charlies Savage discuss the fascinating decisions behind the case itself and how it disappointed conservative critics with the lack of security threats and civil libertarians who thought a civilian court would allow for a detailed examination of the Bush Administration's post-9/11 policies on detention and interrgation. The authors wrote that the jurors heard nothing about Gitmo, where Mr. Ghailani was held, nor about the secret overseas "black site" run by the CIA, where his lawyers claim he was tortured. Nor did the jurors hear about his alleged confession, which prosecutors claimed was his admission of guilt of his role in the 1998 bombings of two American embassies in East Africa.

Instead the trial itself ended up being a straightforward murder trial , stripped of the larger, inflammatory political aspects, leaving it up to the 12 jurors to evaluate the evidence of witnesses and forensic findings.

Weiser and Savage recount Eric Holder making the decision on civilian courts after he requested memoranda from civilian prosecutors based in Manhattan and Alexandria and from a team of military prosecutors assined to the Office of Military Commissions. The Military lost out because they argued for using statements the detainees made under interrogation. The civilian team argued for making the case without the need of using statements elicited under torture. The advantage of the civilian prosecutors' approach was that it eliminated the possibility that a statement, if allowed into a trial by a judge, could be the basis of an appeal on grounds that it was tainted.

The Ghailani case was a a test for this strategy.

The government made the decision not to use Ghailani's statements made during his 5 years in detention at a black site. What this meant was that the defense could not pursue how these statements were obtained and where. The "black site" issue was removed from the case. The defense also feared that the CIA was dismantling these prisons and wanted to have the site where Mr. Ghailani was held preserved in case the trial involved the death penalty. Eric Holder decided against seeking capital punishment, thereby making this a moot issue. Judge Kaplan also rejected a defense request that the indictment be dismissed because of the tactics used against Ghailani, thereby ensuring that the issue of torture would not derail the trial.

Basically, the system worked and the prosecution strategy was actually deft. But the jury seemed to have a mind of its own. And what's so bad about a 20 to life sentence? Do the critics of civilian trials want automatic serial life sentences?

Hanging over this trial and all other detainees from Gitmo is the black cloud of torture. If there were problems for the prosecution in the civilian court about how to handle torture, the situation would not be any better in a military commission. In fact, military commissions have been ordered by President Obama not to accept statements coerced by torture as evidence.

The most prominent critics of Obama's policy on civilian trials are people complicit in the Bush torture program itself. If you want more evidence of how destructive this policy has been to the United States, just check out the part in Taxi where Col. Wilkinson discusses the torture of Al-Libi and his statement made under torture that Saddam Hussein was training Al Qaeda in the use of biological weapons. This statement was never examined but instead inserted in Colin Powell's address to the United Nations as a reason to invade Iraq. The CIA later expunged all of Al-Libi's statements from the record as false. But the damage was already committed. America's reputation was severely damaged.