As a trial attorney with the Department of Justice, I am familiar with the al-Rabiah case (however, to be clear, I am not a trial attorney who worked on the case). My opinions stated herein, of course, are not the opinions of the Department. I write for myself and myself alone.

I had a long conversation regarding the al-Rabiah case with colleagues when the decision came down. Our expertise and experiences are varied, but we all work on matters ranging from criminal matters to civil habeas cases. We are litigators, and we know what makes a case, and when a case is weak.

The conclusion drawn by each of my colleagues – some of whom are liberal Democrats, some of whom are conservative, law-and-order Republicans – is, to a person, that the detention and interrogation programs the United States implemented in the months and years following 9/11 is not only a complete abrogation and violation of international law and, in many cases, federal law – it is also fundamentally immoral. We also agree that the al-Rabiah case is by far the most egregious yet to come to light. To repeat: yet to come to light. I can only guess that there are other, far worse cases.

That said, I am surprised you did not highlight what me and my colleagues agreed was the single most horrifying passage from the Court’s decision. It was the Court’s quotation of something an interrogator said to al-Rabiah during his interrogation. The interrogator told al-Rabiah:

“There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

Court Memorandum and Order, p. 41 (emphasis mine).

This was an agent of the United States saying this.


This was not a statement pulled from the transcripts of the Nuremburg trials, nor archival evidence taken from reports smuggled out of one of Stalin’s gulags. This was a statement made by an agent of this government less than 7 years ago to a detainee. The enormity of that is nearly incomprehensible.

But even worse – far worse – is the fact that the government would nevertheless still seek to convict based on the resulting confession.

To those of us who read that passage and who vowed and make it our vocation to serve and protect the Constitution of the United States, that fact is a gut-punch. For me and my colleagues, it literally took our breath away. It makes one wonder how far down into the abyss we have allowed ourselves to drop. And whether there is the political will to find our way out.

It took my breath away as well. I used to wonder how democracies became tyrannies. I know now. Because good men like Obama do nothing.

http://andrewsullivan.theatlantic.com/the_daily_dish/2009/10/they-...