With Times Square Bomber Sentenced to Life, Ghailani Trial Gets Started

In the wake of the life sentence of Times Square bombing plotter Faisal Shahzad, the trial of the first former Guantánamo Bay detainee to be tried in a civilian U.S. federal court will finally get underway on Wednesday. Ahmed Khalfan Ghailani, a Tanzanian who's been in U.S. custody since 2004, is accused of assisting the 1998 bombings of U.S. embassies in East Africa that killed 224 people and wounded hundreds more. Originally scheduled for opening statements on Monday, the trial was delayed at the government's request so the judge can rule on a critical question: can the government introduce at trial a witness it first learned about during abusive CIA interrogations?

Defense lawyers argue that the witness, Hussein Abebe, who the government says supplied Ghailani with explosives used to bomb the U.S. embassy in Tanzania in 1998, should be barred from the case because his identity is the fruit of the government's abuse. Prosecutors counter that the witness will testify voluntarily, and is only remotely linked to Ghailani's mistreatment. (Although evidence of Ghailani's treatment in CIA custody is largely classified and therefore filed under seal, nobody seems to be denying that Ghailani was subjected to the Bush administration's "enhanced interrogation techniques" in a secret CIA prison.)

At a hearing last month, federal district court Judge Lewis Kaplan, presiding over the case in lower Manhattan, questioned the government's claim that Abebe, who prosecutors call "a giant witness for the government," was testifying voluntarily.  He's expected to rule on this issue by Wednesday.  That ruling could signal how federal judges might decide these sorts of questions in the future – and whether the government will give more civilian judges the opportunity to consider them.

About 35 detainees now being held at Guantánamo Bay are slated for trial, but the government hasn't said how many it plans to bring to civilian courts on U.S. soil, and how many it will try in military commissions set up at the Guantánamo prison complex.

Since September 11, civilian federal courts have convicted more than 400 people on terrorism-related charges. Many, like Shahzad, are now serving life sentences. Military commissions, meanwhile, have convicted only four. And two of those have already been freed. That's in part because since their creation, the military commissions have been struggling to interpret the new Military Commissions Act, first passed in 2006 and amended last year, and the accompanying rulebook issued just this past Spring. International lawyers and constitutional scholars say the law has substantial legal problems that would put most post-trial convictions at risk of appeal.

Judge Kaplan's rulings in the Ghailani case so far reflect the careful way most civilian federal judges handle these cases using established law. In detailed legal opinions, the judge has so far refused to dismiss the case, rejecting strong arguments from Ghailani's lawyers that the government violated his right to a speedy trial by waiting six years to prosecute him (he was captured in 2004), and that his abuse in CIA custody should lead to his acquittal.

To their credit, prosecutors are not relying on statements Ghailani made in custody – presumably concerned that they would be considered the products of coercive interrogations and therefore inadmissible. With four other men already convicted and serving life in prison for their roles in the bombings, the government apparently believes it has enough evidence against Ghailani without his statements.

Still, the alleged torture of Ghailani in a secret CIA prison hangs heavy over this case – as it will every other one where detainees were subjected to the so-called "enhanced interrogation techniques" that included sleep deprivation, exposure to extreme temperatures, stress positions, confinement in a box and in some cases, waterboarding.

The Ghailani case is also being closely watched for any local reaction it provokes. Last year, Liz Cheney and her advocacy group Keep America Safe rallied in downtown Manhattan to protest the administration's decision to hold the trials of the alleged September 11 plotters in a New York federal court. Obama critics such as Debra Burlingame warned that "part of Jihad is tying up lower Manhattan"; Karl Rove called holding trials there "an utter, unmitigated disaster for the security of the United States."

So far, though, the New York Policy Department has said it hasn't had to take any extraordinary security measures for the first former Gitmo detainee's trial. Having been inside the courthouse for jury selection, I didn't notice any difference in security, either. Meanwhile, as my colleagues discovered the other day when they interviewed New Yorkers heading to work downtown, most locals don't even know the trial is happening. Watch reactions in the video below:

Time for 'A Full and Open Debate' about Drones

 

Last week, in a rare public interview, Michael Leiter, the nation's counterterrorism chief, acknowledged that the government's drone and targeted killing strategy, which appears to have become a cornerstone of the Obama administration's "war on terror," demands "a full and open debate."

Leiter was responding to a question from Newsweek's Michael Isikoff about the fact that the Obama administration

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Failed Times Square Bomber's Guilty Plea Is a Win for US Justice System

 

 

After an initial delay, Faisal Shahzad, the failed Times Square car bomber, stood up today in a federal courthouse in downtown Manhattan andentered a plea of "guilty."

Though his expected court appearance had been widely publicized, there were no gunshots heard or bomb threats issued. Notwithstanding Liz Cheney's warnings that bringing suspected terrorists to a U.S. federal courthouse can only cause chaos, the proceeding was orderly, calm and peaceful. The dozens of reporters from around the world who packed the courtroom quietly hurried out to file their stories across the globe.

And the story that they now have to tell is a simple one: the U.S. criminal justice is working.

Since it happened in May, critics of the Obama administration have heralded the failed Times Square bombing attempt as proof that Americans are under constant threat from a powerful foreign enemy and must, in our vigilance, treat all suspected terrorists as enemy warriors -- throwing them in an offshore military prison and either detaining them indefinitely or allowing them only a trial by military commission.

But the careful handling of Faisal Shahzad by New York City police and federal law enforcement is proof of just the opposite. Whether the attempted mass murderer sees himself as aligned with a group of foreign jihadists battling American imperialism is beside the point. What matters is that good old-fashioned law enforcement -- police officers quickly responding to the observations of an alert pedestrian, and skilled FBI agents using time-honored interrogation techniques -- successfully averted disaster and, thereafter, gained critical intelligence to help thwart future attacks.

Shahzad, a Pakistan-born U.S. citizen, was indicted last week on 10 terrorism and weapons charges that accused him of using money and training from the Pakistani Taliban to plot his failed car bombing. His plea of guilty to all 10 counts (five more than originally specified) could land the 30-year-old father of two in prison for life.

Shahzad's plot fizzled, of course, when the gasoline-and-propane bomb he tried to construct failed to ignite in the SUV he'd parked near a Broadway theater. That's typical, say many experts, of bombing attempts in the United States. Among the challenges of detonating a bomb on U.S. soil are the difficulty of obtaining high-powered explosives and of fashioning an effective explosive from the sort of products that are easily available.

That Shahzad wasn't successful doesn't mean he's not a terrorist, however. And what's critical about this case is that skilled law enforcement officials knew that even though his attempt failed, Shahzad was a potential treasure trove of information about the Pakistani Taliban and their operations. And they've exploited that well: after his arrest, Shaizad reportedly cooperated with law enforcement and answered their questions for two weeks before even requesting a lawyer. His arraignment was postponed several times even after a lawyer was appointed to represent him, indicating that even with a lawyer he continued to cooperate, with the process culminating in today's guilty plea.

Shahzad's cooperation has so far lead to the arrest of a Pakistani army major in Islamabad who was allegedly in contact with Shahzad by cell phone. Three men have also been arrested in the United States on immigration charges for allegedly helping Shahzad import money from Pakistan.

Administration critics such as John McCain insisted after Shahzad's arrest that he should never have been read his Miranda rights or treated as a common criminal. Indeed, a bill McCain introduced in March, the Enemy Belligerent Interrogation, Detention and Prosecution Act, would have prevented that. The bill would require all terror suspects such as Shahzad to be turned over to the military for interrogation and possibly indefinite dentition without trial. There would be no Miranda rights, no right to a lawyer and no right to remain silent.

Although it's theoretically possible that military interrogators handling a suspect that way could get useful information, it's not clear exactly how or why that would work. For one thing, military interrogators are trained to gather information on a battlefield, not for future prosecution. That means the evidence can easily be compromised, making it impossible to prosecute the suspect later. That also means the interrogator loses the leverage a future prosecution can offer.

The administration, of course, has said that it can hold indefinitely any suspects it deems "alien enemy belligerents." But that also works against encouraging cooperation. After all, if a suspect knows that acknowledging his participation in the plot could land him in indefinite detention without charge or trial, what incentive does he have to cooperate?

One reason the FBI has been so successful is terrorism cases is that by following the federal court rules, it reserves its ability to criminally prosecute any terrorism suspect. It doesn't have to worry that the evidence won't be admissible later. The suspect, meanwhile, knows he's headed to court, and that the person interrogating him can influence what the charges and the sentence will be. That provides a strong incentive to cooperate and provide as much information as possible, in the hopes of getting some sort of a break -- a few decades in prison, say, instead of life.

Still, critics such as Liz Cheney and Senators Lindsey Graham, John McCain and Joseph Lieberman continue to argue that treating suspected terrorists as criminals isn't being tough enough, and demand military detention.

But just because something's run by the military doesn't make it any tougher. On the contrary, the military commissions created to try suspected terrorists at Guantanamo Bay have managed to convict only three terrorists in eight years -- and two are already out free. The criminal justice system, on the other hand, has convicted some 400 terrorists since September 11, 2001.

Faisal Shahzad's guilty plea today is a perfect example of how the system works, producing valuable intelligence while still landing convicted terrorists behind bars.

The U.S. faces a very real threat of terrorism, whether at home or abroad. But the solution to the threat isn't to do away with the most effective means we have of combating it.

Times Square Plot Underscores Urgency of Support for Pakistan’s Democracy Movement

The attempted bombing of New York’s Times Square over the past weekend underscores the urgency of our support for the democracy movement in Pakistan. Years of double-dealing by dictatorships that sympathized with jihadi ideology and used militant groups as proxy fighters resulted in an expansive network of terrorists inside the country. The democratic government, elected in 2008, has been working closely with the US to eliminate these groups.

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Congressional Sparring Ignores Practical Reasons For Miranda

As lawmakers in Congress duke it out over whether the Times Square bombing suspect ought to have been read his Miranda rights, it's worth considering the real-life impact of reading a suspect his rights - and of withholding them. The consequences of not reading rights to terrorist suspects that we later want to prosecute are now on display at the military commissions in Guantanamo Bay, Cuba. And it's not looking good for the government.

Omar Khadr, whose pre-trial hearing continues, was not read his rights, pursuant to Bush administration policy. Of course, Khadr was captured in Afghanistan, following a deadly shootout with U.S. forces. The Obama administration isn't reading Miranda rights to battlefield captures either.

Withholding Miranda rights makes sense in the heat of a battle, because we don't usually prosecute warriors; instead, we try to defeat their forces, and send prisoners home when the war is over. But once the government decides it may want to prosecute someone and bring him to justice - whether he's captured in an Afghan desert or at JFK airport in New York - there are very practical reasons for informing him of his rights.

In the case of the Times Square suspect, Faisal Shahzad, U.S. officials initially questioned him without reading him Miranda rights, under what's known as the "public safety exception" to the Miranda rule. Statements made in that initial period when the FBI is collecting information about any imminent threats are still admissible in court later. But once investigators determine that the imminent threat is over, they must deliver those Miranda warnings if they want to use any of the evidence they gather from the suspect later in a prosecution. In Shahzad's case, they did - and hereportedly kept right on talking.

That's typical - as Human Rights First's report "In Pursuit of Justice" notes, empirical studies from both supporters and opponents of the Miranda rule have found that giving the warnings has little real effect on whether a suspect speaks to police without a lawyer.

Still, to some, the idea of telling a suspected criminal that he has the right to remain silent sounds kind of silly. After all, why would you want to encourage him not to talk?

But the Miranda rule developed for a very good reason, and has withstood several legal challenges. The Constitution (and the Uniform Code of Military Justice) provides suspects the right against self-incrimination, and the right to the assistance of an attorney. By informing a suspect of those rights, the FBI basically immunizes itself - anything the suspect says afterwards can then lawfully be used against him.

The Miranda rule means the government doesn't later have to spend months arguing in court over whether a suspect's statements were voluntary or coerced, as it's now forced to do in the Khadr case. Because even military commissions forbid reliance on involuntary confessions, except those made at the point of capture or during active combat - a rule that's similar to the federal court's public safety exception.

The Khadr case is a perfect example of how hard it is for the government to show that a suspect confessed voluntarily if he was never told of his right not to.

Khadr, who was 15 when he was captured, claims he was mistreated in custody and coerced into saying things that weren't true. His hearing is ongoing, and although some evidence has emerged to support his claims, it's impossible to know yet what really happened. (As I've explained before, themilitary commission rules make finding the truth in such cases particularly difficult.) But if Khadr can show that he was coerced into confessing, his statements have to be thrown out even under the military commission's rules. That's because coerced statements are considered inherently unreliable - in any U.S. court of law.

To argue that Shahzad shouldn't have been read his Miranda rights, as Senator John McCain (R-Ariz.) did yesterday, makes even less sense than in a case like Khadr's, because Shahzad is a U.S. citizen who cannot legally be tried in a military commission. (Rep. Peter King (R-NY), who reportedly said Shahzad should be tried in a military commission, apparently didn't understand that.) So the result of not reading him his rights after the public safety threat has subsided would be to undermine his subsequent prosecution - and to risk having to let him go free.

Surely Sen. Christopher Bond of Missouri, the ranking Republican on the Senate Intelligence committed, didn't mean to suggest we should free terrorists when he said yesterday that the U.S. has "got to be far less interested in protecting the privacy rights of these terrorists than in collecting information. . . ." But that could be the logical result of the current campaign to deny terror suspects basic rights.

Even Glenn Beck, the conservative Fox News commentator, defended the Obama administration's handling of the case yesterday, saying that "we uphold the laws and the Constitution on citizens....We don't shred the Constitution when it's popular."

Connecticut Senator Joe Lieberman's response to that, of course, was that Shahzad, who hasn't yet been convicted of anything, should be stripped of his citizenship. (In fact, if he were convicted of fighting with an enemy military force he would be stripped of his citizenship anyway.)

Setting aside the many compelling arguments for why the United States on principal shouldn't be cowed by terrorists into abandoning our own Constitution, it's worth remembering that the Miranda rule serves a very important practical purpose: it ensures that suspects' confessions are usable in court against them, and that terrorism convictions in any U.S. legal forum will stand.

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