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.

 

 

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.

 

 

Graham Bill Plays Right Into al Qaeda's Hands

By Daphne Eviatar, Senior Associate, Law and Security.

Addressing the current threat from al Qaeda at a recent forum in New York, the Deputy Special Assistant to President Bush and former Deputy National Security Advisor for Combating Terrorism warned that the United States' military reaction to the threat of terrorism is backfiring.

"We're in desperate need of disciplining our response," said Juan Zarate, speaking on a panel last week at New York University Law School's Center for Law and Security. "We have to have a sense of resilience. Every attack can't create a maximal response, because it feeds the enemy."

Too bad Senator Lindsey Graham of South Carolina wasn't there to hear him.

In Washington a week later, Graham was telling an audience at the American Enterprise Institute just the opposite. The U.S. needs to step up its military response to terrorism at home and abroad, he said. "The enemy has declared war on the United States. The question is, are we going to declare war on them?"

Graham lamented that the U.S. has given up its use of "enhanced interrogation techniques." And he vowed to introduce legislation that would ensure that suspected terrorists arrested in the United States don't get the same rights to defend themselves as do other suspects in the criminal justice system - such as mass murderers and rapists.

"This is not crime we are fighting," he said on the Senate floor later that day. "We are fighting a war."

In Graham's view, treating al Qaeda and Taliban sympathizers as criminals instead of warriors makes us weaker.

On its face, Graham's logic has a certain appeal. But national security experts increasingly warn that militarizing all aspects of the "war on terror" actually plays into the hands of al Qaeda and hurts, rather than helps, U.S. counter-terrorism efforts.

Senator Graham is now pushing legislation in Congress that would significantly expand the scope of the U.S. "war on terror." Among other things, he would require the U.S. to treat a suspected al Qaeda affiliate, whether arrested within the United States or abroad, as a war criminal who can be interrogated without Miranda rights and detained indefinitely without trial. A U.S. court later reviewing the detention could presume the imprisonment was lawful based on certain minimal evidence -- such as attendance at a Taliban or al Qaeda-affiliated training camp, even if decades earlier.

That sort of stark reaction to sporadic terror attacks is exactly what al Qaeda wants. According to Zarate, now a senior advisor to the Center for Strategic and International Studies, al Qaeda is intentionally goading the U.S. into overreacting to the terrorist threat; it can then recruit new members by characterizing the United States as fighting a world-wide war against Islam.

Al Qaeda wins even if its terrorist attacks fail, so long as it sees the U.S. reacting with alarm - allowing itself to be "terrorized."

Thus the failed Christmas Day bombing on a plane to Detroit last year, and the botched attempt to blow up a car in Times Square last Spring, were victories for al Qaeda because they sparked hysteria in the U.S., says Zarate -- mostly in the form of new bills in Congress, from Senator Graham and others, to deny suspected terrorists basic rights.

Another al Qaeda tactic is to entice the U.S. into over-committing itself militarily around the world. "They're baiting the U.S. into a regional quagmire," said Zarate, referring to the increasing drone warfare in Pakistan, Yemen and Somalia.

Similarly, al Qaeda wants to "economically bleed" the United States by taunting it into an endless global war, he said. In al Qaeda's view, that's the best way to bring down a superpower -- particularly during a recession.

For all of these reasons, it's important not to over-react to the terrorist threat. Making what should be a law enforcement matter into a military one, as Senator Graham and some other lawmakers are advocating, does just that. It's worth noting that the U.N. Security Council, in its reaction to the September 11 attacks, obliged member states to "criminalize" terrorist attacks - not to declare war on terrorists.

If the sort of tactics Graham is proposing were actually necessary to fighting terrorism, they might be worth the risk of aggrandizing al Qaeda. But they're not. There's no evidence that reading defendants their Miranda rights, for example, keeps them from cooperating with law enforcement and providing valuable information; on the contrary, studies show they're more likely to cooperate if told they have rights. Locking the wrong people up indefinitely hasn't helped either: although the Bush administration imprisoned more than 700 people at Guantanamo Bay, the terrorist threat has only expanded around the world. Military trials for terrorists have been a dismal failure as well: military commissions have convicted only four terrorists so far, while civilian federal courts have convicted more than 400 since September 11.

Lawmakers should keep this in mind when considering legislation that would militarize our response to terrorism and sideline the role of law enforcement. Other proposed bills would forbid the transfer of Guantanamo detainees to the United States for trial or even to their home countries and strip terrorist suspects of their U.S. citizenship. These are just the sort of over-reactions that President Bush's terrorism advisor now warns against.

Unfortunately, such over-reactions also feed growing anti-Muslim sentiment within the U.S. "The grand success for bin Laden would be to see emerging in the U.S. a division between Muslim communities and the rest of the United States," observed Zarate last week.

As Fareed Zakaria wrote recently in the Washington Post, "Bin Laden knew he could never weaken America directly, even if he blew up a dozen buildings or ships. But he could provoke an overreaction by which America weakened itself."

Congress should be careful not to give him that satisfaction.

Ghailani Trial Showcases NYC is Safe for Terrorist Trials

Most people don't even realize it, but an alleged al Qaeda terrorist - deemed among the most dangerous terrorists in US custody by US counterterrorism officials - has been quietly appearing in a U.S. federal court in downtown Manhattan for pretrial hearings for weeks now.  His trial is scheduled to start there next week.  And as the Wall Street Journal notes today, the NYPD - who are the national experts on counterterrorism security - don't see any need for extra funds to buttress their normal security procedures.

That's a far cry from the $200 million the police department said last year it would need to secure the trial of some other alleged al Qaeda operatives:  Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attack.

Ahmed Khalfan Ghailani is being tried for his role in an earlier al Qaeda terrorist attack on U.S. interests: the bombings of two U.S. embassies in Africa in 1998. He was considered so important to al Qaeda that after he was captured in Pakistan in 2004, he was subjected to so-called "enhanced interrogation techniques" in CIA "black sites" while interrogators pumped him for information. He was only transferred from the Guantanamo Bay prison camp to a New York prison for civilian trial last year.

Critics of the Obama administration's decision to use civilian trials for alleged terrorists claim, among other things, that trial and imprisonment in the United States pose a major security threat. But according to Devlin Barrett and Sean Gardiner in today's Journal:

The New York Police Department plans some behind-the-scenes security adjustments for Mr. Ghailani's trial, but there will be no street closures or extra officers assigned to security outside the courthouse.

For anyone who actually lives in New York and knows what the downtown courthouse area is like, that makes perfect sense. Ever since the September 11 terrorist attacks, the NYPD has stepped up its patrols and security in the area. There are now concrete barriers around all federal buildings that make it impossible for someone to drive a bomb up anywhere near them. Security entering the courthouse has always been tight, which makes sense, given that the Manhattan courthouse has long been the primary location for terrorist trials.

The problem with the plan to try KSM and his alleged associated there wasn't that New York City lacked sufficient security; it was that political opponents of the Obama Administration turned the trial into a political tool they could use to undermine the administration. And once opponents like Liz Cheney whipped some locals up into a frenzy about the need to close streets and add security, downtown businesses got scared about how that all might affect their bottom line.

The truth is, as the Ghailani trial demonstrates, that the NYPD and federal prison guards are fully capable of securing the massive stone courthouse and adjacent high-security prison that's long housed suspected terrorists safely.  We neither need to shut down the city nor spend another $200 million to accomplish that.

 

 

Is the Obama Administration Guilty of a War Crime?

On Saturday, the New York Times reported that administration officials are "alarmed" by the military commission case of Omar Khadr, the Canadian citizen seized as a 15-year-old by U.S. forces in Afghanistan who's now spent a third of his life in the U.S. prison at Guantanamo Bay. Trying an alleged child soldier based largely on confessions he made after being threatened with gang-rape and murder is not the case the Obama administration had hoped to showcase in its first military commission trial.


But the argument in a new paper published today by Loyola Law School professor David Glazier should give the administration even more cause for alarm. Glazier, an expert on international law and the laws of armed conflict, argues that the military commission trial of Omar Khadr is itself a war crime.

 

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