Kassem on the Evidence in al-Alwi's Case

Lawfare recently reproduced portions of an article by Thomas Joscelyn discussing the D.C. Circuit’s decision in al-Alwi in light of information revealed by Wikileaks.  The two pieces’ shared conceit is that certain statements made by other war on terror prisoners regarding petitioner al-Alwi never made their way into the record at trial.  The subtext is that this information could have bolstered the government’s case.  Lawfare refers to this material as “intelligence,” while Joscelyn labels it “evidence.” Call me old-fashioned, but I find this passing strange.  Traditionally at least, American courts, U.S. intelligence professionals, and serious journalists would not have chosen the terms “intelligence” and “evidence” to describe statements extracted from human beings through waterboarding, other forms of drowning, beatings, prolonged confinement in small boxes, forced nudity,  sexual humiliation, severe sleep deprivation, and stress positions.  Glossing over this reality, with only glancing allusion to “harsh” interrogation, reliability questions, and “concerns about voluntariness,” makes it seem as though some commentators at Lawfare and the Long War Journal deem traditions of fairness and probity in the judicial, intelligence, and journalistic realms to be quaint and antiquated (faint echoes of Alberto Gonzales). I’ll conclude on a more prosaic note, praying that readers will forgive the contrast with the atmospheric punditry some have come to expect from this blog.  The U.S. government typically decides which of its secret accusations are made public.  Wikileaks, it appears, can sometimes make that decision for the government, by publishing classified information.  Defense lawyers, however, are at the complete mercy of the U.S. government’s classification authority.  Tomes of rebuttals to outrageous (and public) allegations regarding Guantánamo prisoners remain under classified seal—a fate not even Wikileaks has been able to undo…  Ramzi Kassem is Associate Professor of Law at the City University of New York School of Law.  Along with his students and co-counsel, he represents Guantánamo prisoner Moath al-Alwi in his appeal.