"Legal Technicalities"

Last Friday, the New York Times' front page, under the headline "Guantánamo Detainees? Not in My State," featured this description of criticism of Obama's plan to close Gitmo:

"One day after President Obama ordered that the military detention center at Guantánamo Bay, Cuba, be shuttered, lawmakers in Washington wrestled with the implications of bringing dozens of the 245 remaining inmates onto American soil.

Republican lawmakers, who oppose Mr. Obama’s plan, found a talking point with political appeal. They said closing Guantánamo could allow dangerous terrorists to get off on legal technicalities and be released into quiet neighborhoods across the United States. If the detainees were convicted, the Republicans continued, American prisons housing terrorism suspects could become magnets for attacks."

Describing governmental violations of the Constitution or the law as "legal technicalities" is not a new tactic, but it remains a dangerous characterization. For example, couldn't we similarly characterize the Constitutional problems of Brown v. Mississippi as "legal technicalities?" Couldn't we frame the issue this case presented as "whether a convicted murderer's confession can be used against them in court after the police used "enhanced interrogation techniques" against them?"

In that case, the "enhanced interrogation techniques" (or the "legal technicalities") at issue were whether the State of Mississippi could introduce "confessions" that were signed only after the defendants were whipped and beaten by the police:

On 30 March 1934 Raymond Stewart, a white farmer from Mississippi, was murdered. Law enforcement authorities thought they knew the perpetrator, and arrested a Mr. Ellington, a local man of African descent. They also detained Ed Brown and Henry Shields, two other African American men who would become petitioners in this case. Ellington was taken to the scene of the murder and asked to confess to the crime, but he professed his innocence.

Upon hearing this, a group of white men who had gathered at the crime scene joined the police to encourage Ellington to confess. They threw a rope over a nearby tree limb, made a noose,seized Ellington, and hung him until his neck bore distinct rope marks that lasted for several days. After being let down Ellington still refused to confess, whereupon he was hung once again. When Ellington continued to maintain his innocence after his second hanging, he was savagely whipped by Deputy Sheriff Dial. Ellington still would not confess, and the mob allowed him to return home.

Brown and Shields were taken to the county jail and detained overnight. The following morning Dial and several white citizens returned to Ellington'shome and arrested him. They then took him to the county jail after first making a detour through Alabama. While in Alabama, Dial and his colleagues whipped Ellington yet again, whereupon he agreed at last to confess to whatever his tormentors accused him.

On the night of 1 April 1934 deputy Dial and a number of white citizens returned to the county jail. Shields and Brown were forced to disrobe and lie over chairs. They were then beaten with a leather strap bearing metal buckles. During the beating deputy Dial made the men understand that, if they would confess involvement in Stewart's murder, the whipping would stop. Eventually both men confessed, and agreed to every detail of the scenario for the murder concocted by the local police and the mob.

Wasting no time, the authorities convened a grand jury comprising two sheriffs and eight white citizens to hear the "free and voluntary" confessions of Brown, Ellington, and Shields to the murder of Stewart. The suspects duly confessed. Although the accused still bore many visible marks of their ordeals and many of those present had knowledge of their treatment, three of the men watching this charade agreed to testify to the voluntary nature of the confessions in the upcoming trial.

The men's appellate counsel had the nerve to disagree with the Mississippi Supreme Court which held that the failure to the Defendants' trial counsel to move to suppress the "confessions" was, well, tough luck.

The U.S. Supreme Court unanimously reversed, holding that the Due Process Clause prohibited the government from utilizing testimony procured through torture. In short, a "legal technicality" was created that said you couldn't beat a confession out of a suspect and use it against them in court in a civilized nation.

The issue for Guantanamo Bay detainees is likely similar: whether confessions procured through "enhanced interrogation" techniques, such as waterboarding, can be used by the government (which intentionally held them offshore in an attempt to prevent them from utilizing the protections inherent in U.S. law) against them at trial.

So when you hear the term "legal technicality" used to describe any person's defense, remember that another description for this is likely "the Constitution," the document our political leaders swear an oath to support but don't always carry out.