Couch couldn't wait to prosecute Mohamedou Ould Slahi, a Mauritanian radical imam (who is still being held at Guantanamo Bay) — but it didn't take long before he concluded that the evidence he had to work with was inadmissible if not worthless. As Bravin reports, at Guantanamo Slahi was stripped naked and subjected to a probe of his anal cavity; beaten so hard that he suffered "rib contusions"; exposed to extreme temperatures under a heater or in a room known as "the freezer"; forced to stay awake amid blaring rock music and strobe lights; and taken to a room whose walls were covered with images of women's genitalia while female interrogators rubbed their breasts over his body.
Eventually he provided his interrogators with some kind of testimony. But Couch, a devout Christian, at first had religious misgivings about torture, then legal ones. When he told his superior that Slahi's interrogation had violated the Geneva Conventions and other treaties, he was waved away. So he refused to prosecute. "I hate to say it," he tells his wife, "but being a Christian is going to trump being an American."
Couch, like other brave figures in the military and the administration, spoke out about the inadequacy of the tribunals, but that hasn't made them go away. When he came to office in 2009, President Obama promised to shut down Guantanamo Bay (he did not, of course), but he didn't exactly promise to end the military tribunals that were taking place there. Khalid Sheikh Mohammed — the Sept. 11 mastermind whom Eric Holder attempted and failed to have tried in New York — is currently being prosecuted in one of these tribunals, and as Bravin witnesses from the press box at Gitmo, it's a fiasco. The defendants fail to acknowledge the legitimacy of the court, while a military censor hits a button to cut the audio feed to journalists, families of Sept. 11 victims and the rest of the outside world.
Why has Obama, a distinguished constitutional law scholar in an earlier life, failed to roll back the massive expansion of executive power orchestrated by the last administration's lawyers and advisers, people whose vision of justice he doesn't come close to sharing? Bravin speculates that the president really did want to end the program but thought "his political capital was better spent on other priorities — health care, economic recovery, the Iraq drawdown." Given Obama's embrace of drone strikes and other elements of Bush's military strategy, that may be a wishful read. Whatever the reason, the military commissions now have "a bipartisan imprimatur that virtually ensures they will be a fixture of American law for years to come." It's a stark conclusion to this essential book, but a necessary one. The Terror Courts may read like a thriller at times, but really it's something else: a bona fide American tragedy.
Read an excerpt of The Terror Courts