Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict "signals weakness in a time of war."

John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."

And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."

There's more...

Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict "signals weakness in a time of war."

John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."

And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."

There's more...

Critics of Ghailani Trial Have Little Faith in U.S. Law

On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.

Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.

In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.

The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.

Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.

"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?

Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.

Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.

If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.

Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.

Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.

 

 

Liz Cheney's Impeccable Timing

 

It's nice to see that even conservatives are disgusted with Liz Cheney's latest attack on Eric Holder. As you've no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that's what defense lawyers are supposed to do, but that doesn't stop Liz Cheney from sponsoring scary videosinsinuating that defending someone swept up by US forces and accused of terrorism is just fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.

Cheney and her small but highly vocal group Keep America Safe know how to prey on people's worst fears and prejudices. So I'm not all that surprised by their attack on lawyers like Neal Katyal, a Georgetown law professor, now Principal Deputy Solicitor General, who previously argued that the Bush administration's military commissions were unconstitutional -- and convinced a conservative U.S. Supreme Court that he was right.

But there's another reason Cheney's latest attack should not have come as a surprise. Consider the timing: late on Friday, February 18, the Department of Justice released a long-delayed report that set out the details of how two Justice Department lawyers, in close contact with the Vice President's office, wrote a series of legal memos that grossly perverted existing law and longstanding legal precedent to justify some of the most heinous acts of torture and institutionalized abuse of U.S. prisoners in American history. Although a career official at the Justice Department ultimately decided that the department's internal ethics rules were too unclear to recommend sanctions, the facts of the underlying report remain a damning indictment of attorneys John Yoo and Jay Bybee, among others, who gave the legal green light to criminal and immoral conduct.

What better time for Liz Cheney to change the subject?

Sure enough, a little more than a week later, and just days after the Senate Judiciary Committee held a hearing on the Justice Department's ethics report, Keep America Safe on March 2 released its video on "The Al Qaeda 7" -- seven lawyers in the Justice Department with some connection at some point in their careers to the defense of a Guantanamo detainee.

Immediately, the media shifted gears: it was no longer John Yoo we cared about, now it was the "Al Qaeda 7" -- mysterious Justice Department lawyers who pal around with terrorists. Republican lawmakers such as Sen. Chuck Grassley of Iowa quickly jumped on the bandwagon.

Sure, the argument came to look kind of silly after The Huffington Post unearthed a 2007 article by Bush administration Solicitor General Ted Olson in which he specifically stood up for those detainees' defense lawyers, saying they represented the best of American values and were the real patriots. And then several prominent conservative lawyers, such as former DOJ officials John Bellinger and Peter Kiesler, publicly criticized the Cheney attack ad as "unfortunate" and "wrong."

But maybe none of that really matters. After all, it wasn't like the Al Qaeda 7 had actually done anything wrong or were at risk of any criminal or professional censure. On the contrary, they'd done exactly what the legal profession requires them to do: zealously defend their clients. But Cheney's attack conveniently shifted the spotlight away from other former Justice Department officials who actually are at risk of professional and criminal sanction.

The Office of Professional Responsibility's final report provides ample evidence former Justice Department attorneys John Yoo and Jay Bybee intentionally wrote legal memos that were blatantly wrong. It also suggests that White House officials were intimately involved in that process. The fact that John Yoo's e-mails were "deleted" and unavailable to the ethics investigators is no small matter either, both for what additional evidence those e-mails might have contained and because destroying federal records is a crime -- as is obstruction of justice.

Liz Cheney may have managed to temporarily distract the news media from the subject of her father's role in developing illegal policies that authorized torture. But let's hope that the Senate Judiciary Committee continues to press its probe, for there are many observers out there, both at home and abroad, who have not so easily forgotten.

Liz Cheney's Impeccable Timing

 

It's nice to see that even conservatives are disgusted with Liz Cheney's latest attack on Eric Holder. As you've no doubt heard, Cheney is miffed that there are attorneys in the Department of Justice who, in the past, have defended people accused of nasty crimes. Of course, that's what defense lawyers are supposed to do, but that doesn't stop Liz Cheney from sponsoring scary videosinsinuating that defending someone swept up by US forces and accused of terrorism is just fundamentally worse than defending an ordinary serial murderer, rapist or corporate swindler.

Cheney and her small but highly vocal group Keep America Safe know how to prey on people's worst fears and prejudices. So I'm not all that surprised by their attack on lawyers like Neal Katyal, a Georgetown law professor, now Principal Deputy Solicitor General, who previously argued that the Bush administration's military commissions were unconstitutional -- and convinced a conservative U.S. Supreme Court that he was right.

But there's another reason Cheney's latest attack should not have come as a surprise. Consider the timing: late on Friday, February 18, the Department of Justice released a long-delayed report that set out the details of how two Justice Department lawyers, in close contact with the Vice President's office, wrote a series of legal memos that grossly perverted existing law and longstanding legal precedent to justify some of the most heinous acts of torture and institutionalized abuse of U.S. prisoners in American history. Although a career official at the Justice Department ultimately decided that the department's internal ethics rules were too unclear to recommend sanctions, the facts of the underlying report remain a damning indictment of attorneys John Yoo and Jay Bybee, among others, who gave the legal green light to criminal and immoral conduct.

What better time for Liz Cheney to change the subject?

Sure enough, a little more than a week later, and just days after the Senate Judiciary Committee held a hearing on the Justice Department's ethics report, Keep America Safe on March 2 released its video on "The Al Qaeda 7" -- seven lawyers in the Justice Department with some connection at some point in their careers to the defense of a Guantanamo detainee.

Immediately, the media shifted gears: it was no longer John Yoo we cared about, now it was the "Al Qaeda 7" -- mysterious Justice Department lawyers who pal around with terrorists. Republican lawmakers such as Sen. Chuck Grassley of Iowa quickly jumped on the bandwagon.

Sure, the argument came to look kind of silly after The Huffington Post unearthed a 2007 article by Bush administration Solicitor General Ted Olson in which he specifically stood up for those detainees' defense lawyers, saying they represented the best of American values and were the real patriots. And then several prominent conservative lawyers, such as former DOJ officials John Bellinger and Peter Kiesler, publicly criticized the Cheney attack ad as "unfortunate" and "wrong."

But maybe none of that really matters. After all, it wasn't like the Al Qaeda 7 had actually done anything wrong or were at risk of any criminal or professional censure. On the contrary, they'd done exactly what the legal profession requires them to do: zealously defend their clients. But Cheney's attack conveniently shifted the spotlight away from other former Justice Department officials who actually are at risk of professional and criminal sanction.

The Office of Professional Responsibility's final report provides ample evidence former Justice Department attorneys John Yoo and Jay Bybee intentionally wrote legal memos that were blatantly wrong. It also suggests that White House officials were intimately involved in that process. The fact that John Yoo's e-mails were "deleted" and unavailable to the ethics investigators is no small matter either, both for what additional evidence those e-mails might have contained and because destroying federal records is a crime -- as is obstruction of justice.

Liz Cheney may have managed to temporarily distract the news media from the subject of her father's role in developing illegal policies that authorized torture. But let's hope that the Senate Judiciary Committee continues to press its probe, for there are many observers out there, both at home and abroad, who have not so easily forgotten.

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