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February 17, 2008
Op-Ed Contributor
Unforgivable Behavior, Inadmissible Evidence
By MORRIS DAVIS

Washington

TWENTY-SEVEN years ago, in the final days of the Iran hostage crisis,
the C.I.A..s Tehran station chief, Tom Ahern, faced his principal
interrogator for the last time. The interrogator said the abuse
Mr. Ahern had suffered was inconsistent with his own personal values
and with the values of Islam and, as if to wipe the slate clean, he
offered Mr. Ahern a chance to abuse him just as he had abused the
hostages. Mr. Ahern looked the interrogator in the eyes and said, .We
don.t do stuff like that..

Today, Tom Ahern might have to say: .We don.t do stuff like that very
often.. Or, .We generally don.t do stuff like that.. That is a
shame. Virtues requiring caveats are not virtues. Saying a man is
honest is a compliment. Saying a man is .generally. honest or honest
.quite often. means he lies. The mistreatment of detainees, like
honesty, is all or nothing: We either do stuff like that or we do
not. It is in our national interest to restore our reputation for the
latter. (All opinions here are my own, and do not necessarily reflect
those of the Air Force or Defense Department.)

Some accounts of detainee abuse in the war on terrorism are overblown,
but others are not. After humiliating prisoners at Abu Ghraib by
forcing them to strip naked and lie in a pile like a stack of firewood
or simulating the drowning of detainees to persuade them to talk, we
can no longer say we .don.t do stuff like that. . and we do not have
to look far to see the damage. The disclosure last month of a manual
for Canadian diplomats listing the United States as a country where
prisoners might face torture, referring specifically to Guantánamo
Bay, Cuba, was an embarrassment on both sides of the border.

During the Persian Gulf war in 1991, the Iraqi armed forces
surrendered by the tens of thousands because they believed Americans
would treat them humanely. Our troops reached the outskirts of Baghdad
in 100 hours and suffered fewer than 150 combat-related fatalities in
large part because of these mass surrenders.

Would it have been different if the perception of us as purveyors of
torture and humiliation existed back then? Would tens of thousands of
Iraqis have put down their weapons if they believed they were going to
be humiliated, abused or tortured, or would they have fought? Had they
chosen to fight, the war would have lasted longer and cost more and
casualties would have skyrocketed. Our reputation in 1991 as the good
guys paid dividends and supported our national interests. We must
regain that reputation.

We can start by renouncing cruel, inhuman and degrading treatment of
detainees and unreservedly committing to uphold the Detainee Treatment
Act, which passed Congress in 2005 but was diluted by a presidential
signing statement. We must also reaffirm our adherence to the United
Nations Convention Against Torture, which the Senate ratified in 1990.

Just as important, we need to come to grips with the practice known as
waterboarding, the simulated drowning of a person to persuade him to
talk. There was some progress in recent weeks: the C.I.A..s director,
Gen. Michael Hayden, told Congress that the practice may be illegal
under current law; the director of national intelligence, Michael
McConnell, told a reporter, .Whether it.s torture by anybody else.s
definition, for me it would be torture.; Attorney General Michael
Mukasey, after being asked if waterboarding would be torture if done
to him, said that .I would feel that it was.; and on Wednesday,
Congress passed a law forbidding the C.I.A. to use waterboarding and
other harsh techniques.

Why a few others in positions of power still find it so difficult to
admit the obvious about waterboarding is astounding. We can never
retake the moral high ground when we claim the right to do unto others
that which we would vehemently condemn if done to us.

Once we condemn and stop all waterboarding, what do we do in cases
where it was conducted? An obvious step is to prohibit the use of
evidence derived by waterboarding in criminal proceedings against
detainees. Regardless of whether the technique has produced actionable
intelligence, it did not produce reliable evidence with a place in our
justice system. Imagine the outrage if the Iranian government tied
down an American, convinced him the choices were to cooperate or die,
and then used his .confession. as evidence in a death-penalty trial.

My policy as the chief prosecutor for the military commissions at
Guantánamo was that evidence derived through waterboarding was off
limits. That should still be our policy. To do otherwise is not only
an affront to American justice, it will potentially put prosecutors at
risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my
position to call attention to the issue . efforts that were hampered
by my being placed under a gag rule and ordered not to testify at a
Senate hearing. While some high-level military and civilian officials
have rightly expressed indignation on the issue, the current state can
be described generally as indifference and inaction.

At a Senate hearing in December, the legal adviser for the military
commissions, Brig. Gen. Thomas Hartmann, refused to rule out using
evidence obtained by waterboarding. Afterward, Senator Lindsey Graham,
who is also a lawyer in the Air Force Reserves, said that no military
judge would allow the introduction of such evidence. I hope Senator
Graham is right about military judges, and it is unfortunate that any
might be put in a position where he has to make such a decision.

Regrettably, at a Pentagon press briefing last week announcing that
Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks,
and five others had been charged and faced the death penalty, General
Hartmann again declined to rule out the use of evidence acquired
through waterboarding. Military justice has a proud history; this was
not one of its finer moments.

That is not to say those subjected to waterboarding get a free
pass. If the prosecution can build a persuasive case without using the
coerced .confession,. then whether a defendant endured waterboarding
is immaterial in determining guilt or innocence.

There are some bad men at Guantánamo Bay and a few deserve death, but
only after trials we can truthfully call full, fair and open. In that
service, we must declare that evidence obtained by waterboarding be
banned in every American system of justice. We must restore our
reputation as the good guys who refuse to stoop to the level of our
adversaries. We are Americans, and we should be able to state with
conviction, .We don.t do stuff like that..

Morris Davis, an Air Force colonel, was the chief prosecutor for the
military commissions at Guantánamo Bay, Cuba, from 2005 to 2007.