Khalid Sheikh Mohammed and his four co-conspirators have asked the government to preserve the notorious "black sites" where U.S. agents tortured detainees after the September 11, 2001 terrorist attacks. Their lawyers will argue in hearings at Guantanamo Bay next week that this evidence is critical to their ability to show that evidence used against them was procured by torture; that they were tortured and therefore should be spared the death penalty if convicted; that the government itself committed crimes by punishing them before they'd even been given a trial; and to argue the government acted so outrageously that the entire case against these men should be dismissed.
The government has said the black site evidence isn't relevant, but has deemed its written response to the court classified. In other words, it doesn't want to have to preserve the evidence, AND it doesn't want to say publicly why it shouldn't have to.
Here are five good reasons the government should preserve the black sites anyway:
1. Legitimacy of the 9/11 verdict
If these five men are convicted by a Guantanamo military commission, which is already shrouded in a cloak of illegitimacy, we should be sure the evidence against them is sound. Evidence of official U.S. torture and abuse may help determine whether the government's case depends on evidence elicited through that torture or not. This is an opportunity for the government to demonstrate that its evidence isn't tainted.
2. Legitimacy of the Death Penalty In this Case
In a death penalty case, a much broader array of evidence is considered relevant because of the severity of the punishment. Evidence that these men were tortured by the U.S. government after their capture clearly qualifies as "mitigating evidence" that might convince a jury not to impose a sentence of death. Whatever the sentence, we should be sure it was determined fairly.
3. Legitimacy of U.S. Counterterrorism Policy
In 2009, President Obama issued an executive order closing down all CIA black sites and ensuring the world that the U.S. no longer engages in torture. Producing the evidence now of the sites used for torture and abuse a decade ago follows up that statement with concrete acknowledgement that torture happened, it was wrong, and it's no longer part of U.S. policy.
4. Keep the Focus on the Terrorists
If the government hides evidence of the black sites now, the defense will keep bringing up its claims of torture every chance it can in pre-trial hearings and at trial. The U.S. will look like it's trying to hide embarrassing evidence (which so far it is) and the focus of the trial for observers and the media will be U.S. secrecy about the "dark side" of its post-9/11 past. The heinous crimes allegedly committed by these five men will be all but forgotten as the focus shifts to the wrongdoing of the United States and its persistent efforts to cover it up.
5. The Historical Record
Eventually, we'll learn what really happened to these five men, and to many more suspects caught up in the U.S. "war on terror" after 9/11. The question is just when will that happen, how accurate the story will be, and whether the victims of illegal U.S. policies will live to see that day. So far, the Justice Department has declined to prosecute CIA agents for abuse, or to prosecute CIA officials for destroying videotapes documenting those abusive interrogations.
Now, victims of official U.S. torture are left to fend for themselves, with no acknowledgement or amends from the United States. Others can claim victim status and perhaps exaggerate their trauma regardless of what really happened to them. Preserving and revealing the evidence of these sites of abuse is a way for the Obama administration to take the high road. It's a step toward establishing what happened -- and what didn't happen, as well. It's a way to suck the life out of exaggerated claims of abuse by those who want to undermine U.S. credibility and whip up anti-American sentiment around the world. And it's a way to begin to come to terms with, and make appropriate amends for, crimes committed a decade ago in the name of the American people. It's about time.