Earlier this month, the government announced it would prosecute alleged 9/11 mastermind, Khalid Sheikh Mohammed and four co-conspirators in federal court. Given the government's acknowledgment that "KSM" and his co-defendants were subject to harsh interrogation techniques that included repeated waterboarding, the decision puts the issue of torture squarely before the federal courts.
To understand how the government cannot avoid the issue no matter what evidence it chooses to use, one needs to know something about a rare and somewhat forgotten "outrageous government misconduct" defense in criminal law.
As a former federal prosecutor and a participant in some of the Department of Justice's conventional investigative efforts in the days after 9/11, I am sure the government's case at trial will be overwhelming. Therefore, I doubt that KSM's viable defenses include that he did not conspire in the 9/11 attacks.
Nor is KSM likely to accomplish much in arguing that evidence should be excluded because it is tainted by his treatment in U.S. custody. The prosecutors would never have pursued this case without confidence they can win solely with evidence gathered prior to KSM's capture. KSM's treatment at Guantanamo Bay and elsewhere gives him no legal basis to suppress evidence gathered before he was in custody.
The prosecutors' problem is to avoid outright dismissal of this case before trial when KSM asserts the "outrageous government misconduct" defense. This defense is based on the theory that, regardless of evidence of guilt, the Constitution prohibits prosecution of a person after government agents engage in behavior that "shocks the conscience."
The Supreme Court has not considered this defense for a long time, but neither has the Court rejected it. The argument stems from a 1952 decision authored by Justice Felix Frankfurter. In that case, the Court ruled that the state of California violated the Constitution when it arrested a drug suspect, took him to the hospital and directed a doctor to pump his stomach. The state then seized drugs the man vomited and used them to prosecute him. This was not an illegal search under the Fourth Amendment.
It was outrageous conduct that violated the guarantee of due process because, Frankfurter wrote, the government's methods were "too close to the rack and the screw" for the Constitution to tolerate. Prosecution dismissed.
In the years since this decision, the federal appellate courts have divided over the continued viability of the "outrageous government misconduct" defense. But several have squarely said it exists, including the influential D.C. Circuit court, which has said that such an outright dismissal of a case should be reserved for instances of "coercion, violence or brutality to the person."
The application of this defense to the prosecution of KSM is obvious following repeated waterboarding, among other official acts. Given that the government used methods "close to the rack and screw," it would seem that a court could avoid dismissing the prosecution only by entirely eliminating the defense of "outrageous government misconduct," ruling that it no longer exists. The Supreme Court has never said this, the appeals courts are divided on the question, and the present Supreme Court has been anything but reluctant to address major legal questions flowing from the government's war with Al Qaeda.
KSM's case would seem bound for the Supreme Court, maybe before he can be tried. On its way there, the federal courts will be forced to confront the central questions in the debate about torture. The unavoidable issues include whether what was done to KSM "shocks the conscience" because it was indeed, by anyone's sensible definition, torture. And whether the government is so culpable in having victimized the defendant that it forfeits its right to call him to account for his role in the murders of the victims of 9/11.