Because the issue of water-boarding will not be subject to a protracted legal battle. To the extent the upcoming military commissions address the issue at all, it will happen—as it is happening now—in a black box, cloaked in assertions of secrecy. For one thing, the Military Commissions Act passed by Congress permits the government to assert national security privilege where sources and methods of obtaining information are concerned. They can keep this evidence from the defense, so long as the military judge finds the sources and methods are classified. In Hamdan, the government has already asserted that this prohibition extends to the interviews of the detainees themselves concerning their interrogations, and as such, the government has already erected a wall of silence around the high-value detainees extending even to their interviews.
Without the testimony of their clients, any effort by the defense to pierce this wall of silence will be further stymied by the fact that the tapes of these interrogations were conveniently destroyed. Moreover, the defense won't be able to call the agents who questioned them to probe the interrogation methods used. They are barred from doing that both by the congressionally created national security privilege, and because the agents will undoubtedly take refuge in the right not to make statements that might incriminate them.
These legal obstacles would be formidable for any defense team. But the inability to claim their clients have been tortured is only the beginning of the defense lawyers' woes. Even if they could openly litigate the question of alleged torture, they lack the staff to properly defend their clients. While the office of the chief defense counsel at Guantanamo has always had significantly fewer assets than the prosecution, the passage of the Military Commissions Act left the office with even fewer resources. During the first round of commissions, the office's policy was to assign at least one full-time military counsel to each case and, wherever possible, an associate counsel. Current staffing decisions provide that counsel may carry multiple cases along with their new high-value clients. Just by way of contrast, the ABA standard for death penalty defense—adhered to in military courts-martial—is two full-time death-penalty-qualified counsel.
There was one other reason to bring these high-value detainees to trial now. The timing is perfect for the Bush administration. The MCA ensures that the appeals process can be finished in as little as 120 days, depending on whether the accused waives his right to appeal to the D.C. Circuit. And under the act, any sentence of death must be personally approved by the president of the United States before the sentence can be carried out.
This means that if any of the accused, like Timothy McVeigh, volunteer immediately for the death penalty, President Bush will be able to conclude his presidency by signing a death warrant. With a stroke of the pen, he can claim to have accomplished his goals and vindicated his policies in the war on terror by bringing the architects of Sept. 11 to justice. But even if the detainees try to put up a fight, the protracted legal battle will take place on some other president's watch. And when the dust settles, that next president will be left with the Hobbesian choice of either signing the death warrant (thus putting a stamp of approval of both the process and the policies of Guantanamo) or commuting the sentences of some of the most reputedly vile murders of our time. Either way, this administration is vindicated. Either way, the question of torture happens in secret. And either way, justice loses.