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• Monday, January 12, 2009 08:40 AM

  Jestaplero

  Shorter version: I'm only doing this because Bush fucked up and these are extremely serious cases. Then, no more.

  But what I'm asking you is how can it be justified that we could do it for past cases but not future cases? For someone who believes now that it's more important to detain Terrorists than to abide by the prohibition against using torture-obtained evidence, why would future cases produce a different rationale?

  Now I've answered your question. Will you answer mine? If transferring KSM's case to US court would result in dismissal due to Bush abuses, is that a just resolution?

  Actually, I answered this pretty explicitly:

  Did you read the 1935 case, where the Supreme Court overturned murder convictions of African-American defendants because the confessions were obtained through beatings? Was justice served in that case? Is justice served whenever defendants are acquitted because of constitutional violations by the Government that taint the evidence? I think the answer is clearly "yes" and I don't change my views based on the defendant in question. These principles apply to all crimes, including (one might say "especially") the worst ones.

  Obviously, the best possible case is for guilty people to be convicted in accordance with due process and basic precepts of Western justice. But where that's not possible -- where the choice is between (a) allowing the Government to exploit and benefit from torture-obtained evidence and (b) prohibiting them from using that evidence even if it means a guilty person is acquitted -- the far more just option is (b).

  That's not controversial. That idea is at the core of many -- I'd say most -- Western systems of justice. Option (b) is obviously not ideal because it allows a guilty person to go free, but option (a) is worse since it allows the Government to benefit from torture and other highly unjust acts (and thereby incentivizes them to use those measures in the future).

  There was actually a question of mine you didn't answer: in general, is justice served when, as in that 1935 Supreme Court case (and many cases applying the exclusionary rule), an actually-guilty defendant is acquitted because tainted evidence is disallowed?

  —GlennGreenwald Read GlennGreenwald's other letters
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