THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON March 19, 2003

Should we care if Kalid Shaikh Mohammed is being tortured?


Two weeks ago Kalid Shaikh Mohammed was captured in Pakistan in an operation led by Pakistani and CIA authorities. I am referring to the al Qaeda terrorist who is suspected of masterminding the Sept. II attacks as well as a whole series of other terrorist acts.

From the little we know, he is presently being interrogated by American officials in an undisclosed location, which could be in Pakistan or even in Afghanistan but definitively not in the United States. Wherever he is located we know for a fact that he has no access to an attorney and is not about to appear before a judge. No government official is saying whether he will be tried before a military tribunal or whether he will ever be brought to the United States.

Meanwhile, U.S. authorities, right up to the President are claiming that his capture and detention are important accomplishments in the U.S. war on terrorism. They are convinced that if his interrogators succeed in getting him to talk, the information may prevent scores of terrorists attacks on US citizens. Don't get me wrong, it is not that I'm having sleepless nights over the way Kalid Shaikh Mohammed is being detained and interrogated. One part of me looks at this presumed monster and sees the anguished faces of the relatives of the victims of his brutal crimes. Yes, if what is said about him is true, he is truly an evil and cruel person and deserves every bit of punishment.

However, another part of me reminds me of what Thomas Moore once said, namely that " he would treat the devil to the justice of law. For once you've knocked down every law and the devil turns around on you what have you to fall back on?" If Kalid Shaikh Mohammed no longer has any rights then how will we know for sure that he committed the many crimes for which he is accused? As an attorney and prosecutor I have always believed that such responsibilities were better exercised by a judicial tribunal on the basis of proof beyond reasonable doubt rather than by government authorities.

My other difficulty is trying to justify the emergence of interrogation centers for non-American terrorists in foreign countries and where subtle methods of torture are being used. As for those foreign terrorists being warehoused in the US naval base in Guantanamo Bay, Cuba, it has become increasingly clear that they were shipped there to avoid any public scrutiny. I am particularly disturbed by the leaked pictures that were recently published in practically every newspaper. They revealed prisoners manacled hand and foot and forced to ware full-face hoods and gloves, no doubt in order to subject them to sensory deprivation. I suspect they are being kept awake for days and forced to stand or kneel for long periods in painful positions.

Ironically, Cuba is among the many countries that have been denounced by the US for their grotesque violations of human rights. What also irks me are the many government claims that Kalid Shaikh Mohammed is not being tortured. According to Ari Fleisher, the White House spokesperson, his interrogators are respecting the Geneva Convention on torture which states that "no physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever."

Should we believe Fleischer? Of course not- not being on site he could never know for sure. If there is one thing I've learned throughout my career as a prosecutor it is that despite our many checks and balances, police interrogation and prison guard techniques are not always within the bounds of the law. Even with countless lawsuits, civil awards, public inquiries, confessions being thrown out of court and convictions of assault, cases of brutality continue to surface.

The situation facing Kalid Shaikh Mohammed has all of the elements that would make torture extremely likely. Being a religious fanatic as opposed to an ordinary street thug, Mohammed has clearly no interest whatsoever in providing information on al Qaeda's past or future operations, much less on the whereabouts of his associates and especially, Osama bin Laden. As for plea bargaining being an incentive to make him talk, no offer can sway a terrorist hell-bent on suicide missions and martyrdom.

His interrogators, on the other hand, are under extreme pressure to pry from him every iota of relevant information and pronto. They know very well that the whereabouts of Osama bin Laden and his associates is a matter of national security and that the earlier they obtain such crucial information the greater their chances of preventing other terrorist attacks. Finally, every high-level government official, including the President, is breathing down their necks in the hopes of obtaining new information.

If that isn't enough to encourage torture, Kalid Shaikh Mohammed is detained in a country where police interrogations are not subject to US law. Neither his guardians nor his interrogators have any reason to be concerned about being hauled before the courts on grounds of brutality.

Despite the public's seeming indifference I can well imagine what would happen if U.S. citizens were treated by a hostile country in the same manner. Undoubtedly, there would be a public outcry of major proportions. Irrespective of the reliability of any information obtained under duress, there remains one important question. Is the U.S. justice system sinking to the level of the terrorists in order to safeguard American lives or simply resorting to justifiable methods because of extreme circumstances? You be the judge!