by Andrew P. Napolitano
June 09, 2022:
Information Clearing House
-Last week, at a
pretrial hearing at Guantanamo Bay Naval Base in
Cuba for Abd al-Rahim al-Nashiri, a Saudi who is
charged with being the mastermind of an attack
on the USS Cole in 2000 at which 17 American
sailors were killed, the psychologist in charge
of interrogating Nashiri described in vivid
detail both the modern and the medieval
techniques of torture used upon him.
The psychologist was called as a defense
witness in order to demonstrate to the court
that a good deal of the evidence that
prosecutors plan to introduce against Nashiri
was obtained directly or indirectly through, or
was tainted by, his torture and thus cannot
lawfully be used at his trial.
Torture committed by government officials and
their collaborators upon a person restrained by
the government is a felony punishable by up to
20 years in a federal prison, and its fruits are
inadmissible in all courts. For many years, the
CIA documented torture through video tapes of
its disguised agents and contractors torturing
its captives so it would have a record of the
events without the need for revealing a
participant’s identity.
But the tapes of Nashiri’s torture were
destroyed by either the chief CIA official in
the United States in charge of all torture or
his then-chief of staff. Hence the live
testimony last week. That chief of staff would
go on to become the director of the CIA, Gina
Haspel, nicknamed by her colleagues "Bloody
Gina."
This column will spare the reader the
gruesome and stomach-churning details of
Nashiri’s torture, but for the one medieval
procedure. What caught the eyes of those of us
who monitor these events was the mention of the
name of the CIA official under whose watch the
torture occurred and who wrote detailed, graphic
descriptions of it to her bosses in Langley,
Virginia. That official is the same Gina Haspel.
She was the head of the CIA station at Thailand
in 2002, at which Nashiri was tortured, and she
was the senior member of the torture team.
Nashiri’s torture went on for four months, at
the end of which the interrogation team
concluded that Nashiri was being truthful and
essentially said the same things under torture
as he told interrogators prior to torture. But
Bloody Gina does not trust testimony unless it
comes with great fear and pain.
In 2006, Nashiri was shipped from Thailand to
Gitmo, where he was charged with capital murder.
His trial has not yet commenced. The testimony
last week was one of many pretrial hearings
ordered by military trial judges.
Nashiri, who has the same speedy trial rights
as anyone being prosecuted by the U.S.
government, has been waiting for his trial for
14 years. He is on his second team of military
and civilian defense lawyers. His first team
quit when they discovered that their
communications with their client had been
secretly listened to and recorded by federal
agents.
Most judges would have dismissed the charges
against the defendant for such criminal behavior
by the government. But at Gitmo, where the judge
and the prosecutors have the same boss – the
Secretary of Defense – the niceties of due
process are sometimes watered down.
The significance of Bloody Gina’s personal
supervision of this torture cannot be gainsaid.
It is the first time we have learned from a
witness under oath that CIA torture was approved
and supervised at the highest CIA levels. It is
also the first time we have learned that a CIA
director, earlier in her career, committed
federal crimes, as each torture session is a
separate felony.
We also learned that Bloody Gina may be an
amateur historian. In the late 1400s, when the
Medici in Florence had been deposed by a mad
monk named Girolamo Savonarola, he instituted
aggressive torture for those accused secretly of
sins of the flesh, looking for their public
confessions and the identities of their sexual
partners.
He, like Bloody Gina, refused to accept
testimony from a detained person unless it was
obtained under torture. And he, like Bloody
Gina, instituted a novel torture technique of
hanging a victim by his arms secured behind his
back so as to induce excruciating shoulder
dislocation.
Those of us who believe that the Constitution
means what it says have argued that attackers of
US military personnel who are not in combat
pursuant to a congressional declaration of war
should be tried in federal court and accorded
constitutional protection from the government’s
torturers. Had that been done, Nashiri’s case
and all others at Gitmo would have been
completed years ago, and the government would
not be spending $500 million a year there while
it continues to trash the Constitution.
I was surprised to learn that one of the
torturers admitted to these crimes and
implicated Bloody Gina. Torture by government
officials – no matter their goal – is the most
tyrannical government overreach imaginable. It
presumes that there are no natural rights or
moral standards; it utterly negates the
personhood of the victim; it reveals that there
are no limits to what the government can do and
get away with. It is expressly prohibited by the
Constitution and federal law.
Bloody Gina and her team of torturers may
feel safe from American prosecutors, as the
Nashiri tortures took place well outside of the
statute of limitations – but not from all
prosecutors. The International Criminal Court in
The Hague claims jurisdiction over the entire
globe, and Thailand – the place of Nashiri’s
torture – is a signatory to the treaty that
established the court. The ICC characterizes
torture as a war crime that has no statute of
limitations and recognizes no executive pardons.
When the Medici returned to power after a
popular uprising deposed Savonarola, he was
tortured by his own torturers before he was
hanged for heresy. Torture is government without
limits. Only limited government respects
persons.
Andrew P. Napolitano, a former judge of
the Superior Court of New Jersey, is the senior
judicial analyst at Fox News Channel. Judge
Napolitano has written seven books on the US
Constitution. The most recent is
Suicide Pact: The Radical Expansion of
Presidential Powers and the Lethal Threat to
American Liberty. To find out more about
Judge Napolitano and to read features by other
Creators Syndicate writers and cartoonists,
visit
www.creators.com.
The views expressed in this article are
solely those of the author and do not necessarily
reflect the opinions of Information Clearing House.
Reader financed- No
Advertising - No Government Grants -
No Algorithm - This
Is Independent
