John Yoo, author of several infamous "torture memos" during the Bush administration, appeared on Fox News' The O'Reilly Factor to criticize the Obama administration for giving a civilian trial to Ahmed Ghailani, the man accused of participating in the bombing of U.S. embassies in Kenya. Yoo went so far as to say that he was worried that Obama conducted the civilian trials to "win a popularity contest" with other nations.
Yoo and guest-host Laura Ingraham, however, were silent about the fact that Ghailani was subjected to interrogation techniques of the type approved by Yoo and the use of those interrogation techniques made it much more difficult to win convictions in the case on all counts. (Ghailani was convicted on one count and faces decades in prison as a result.)
The judge presiding over Ghailani's trial excluded the testimony of Hussein Abebe, the person who allegedly gave Ghailani the explosives that were used in the embassy bombings. He excluded the witness because his name was obtained via "extremely harsh interrogation techniques" (and possibly torture). From the decision:
Ghailani was transferred to CIA custody in 2004. He was imprisoned at a secret site and subjected to extremely harsh interrogation methods as part of the CIA's Rendition, Detention and Interrogation Program. 24 Ghailani here contends mat his treatment constituted torture. For present purposes, it suffices to say that the government does not dispute, for purposes of this motion, that all of the statements made by Ghailani while in CIA custody were coerced and obtained in violation of his Fifth and Sixth Amendment rights.
Now, we can't say for sure that Ghailani would have identified Abebe without coerced testimony. We also can't say that Ghailani would have been convicted if Abebe testified.
However, we can say several things:
- The Obama administration has gotten cooperation from terrorists who were treated as criminal defendants and even given Miranda warnings.
- By contrast, using Yoo-approved techniques, it became extremely difficult to convict Ghailani on all counts.
- The judge in the case suggested that the evidence would also have been excluded if Ghailani had been tried by a military commission
- Yoo's reasoning in the torture memos was so bad that it was repudiated by the Bush administration.
And we'll leave it to the judge in the case, federal district judge Lewis Kaplan, to make one more point:
The temptation to allow our revulsion at these bombings, the human instinct for vengeance, and fear of terrorist attacks to overcome principles upon which our nation rests -- principles that, although not always observed, are ideals to which we aspire -- is powerful. If our nation is to continue as a bastion of liberty, however, we must remain true to our principles and overcome that temptation.
Among those principles is that which has been traced to Deuteronomy, that grew gradually through the long history of English law and in the American colonies, and that then was embodied in the Self Incrimination Clause in the Fifth Amendment. While the connection between fruits of a coerced statement -- that is to say, evidence derived from a statement coerced from a defendant -- may be so remote, so attenuated, from the coerced statement that the use of that derivative evidence does not violate the Fifth Amendment, the burden of proving attenuation is on the government.
If only Yoo had also "remain[ed] true to our principles and overcome the temptation" to override them. Alas he did not.
If you can stomach it, here is the video of Yoo attacking the Obama administration over the Ghailani trial while failing to take any responsibility himself: