Former Gitmo Prisoner's Trial Continues, as Child Soldier's is Postponed

As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba werereportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.

In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.

On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.

Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.

Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.

What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.

But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.

Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)

In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.

Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.

 

 

Former Gitmo Prisoner's Trial Continues, as Child Soldier's is Postponed

As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba werereportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.

In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.

On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.

Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.

Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.

What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.

But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.

Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)

In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.

Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.

 

 

Former Gitmo Prisoner's Trial Continues, as Child Soldier's is Postponed

As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba werereportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.

In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.

On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.

Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.

Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.

What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.

But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.

Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)

In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.

Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.

 

 

Former Gitmo Prisoner's Case Comes Down to What He Knew and When He Knew It

 

Lawyers made opening statements Tuesday as the trial began in earnest for the first former Guantanamo detainee transferred to U.S. soil. While the government portrayed the slight, baby-faced 36-year-old as a vicious al Qaeda murderer who helped plan two US embassy bombings that killed 224 people, the defense told a very different story. Although not contesting much of the evidence the government plans to present --- about the bombings themselves, its destructiveness and their innocent victims -- defense lawyers argue that Ahmed Khalfan Ghailani was a hapless young Tanzanian duped into helping his powerful childhood friends who, unbeknownst to him, were al Qaeda killers.

What's most surprising about the case is that, based on the government's opening arguments, it's not clear whether prosecutors have any direct evidence establishing that Ghailani intended to hurt anyone, or even knew that the items he purchased in Tanzania were going to be used as a bomb. That knowledge is a critical element of the charges against him -- particularly the multiple murder charges.

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.

 

 

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