Watch Cheney and Co. Respond to the Ghailani Sentence

In recent months we heard a lot of pundits wax hysterical about the chaos and mayhem the federal court trial of a former Guantanamo detainee would bring to New York.

The folks at Keep America Safe – Liz Cheney, Bill Kristol, and Debra Burlingame – called the trial “dangerous,” “ reckless,” and “embarrassing”. 

But in New York the trial proceeded with no disruptions. No street closures. No increased police presence. And, this week, a federal judge sentenced Ahmed Ghailani to life in jail with no chance of parole.

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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."

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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."

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Gitmo Guilty Plea Is A Sad Day for U.S. Rule of Law

This morning I sat in a U.S. military commissions courtroom in Guantanamo Bay, Cuba, and watched the first child soldier charged by a Western nation since World War II plead guilty to crimes he was never even accused of. If the guilty plea of Omar Khadr this morning was a face-saving effort by the U.S. government, it was a sad day for the rule of law in the United States.

Omar Khadr is the 24-year-old Canadian who's spent a third of his life in U.S. custody without trial after being accused of helping his father's al Qaeda associates build improvised explosive devices when he was just 15. He was taken to Afghanistan from Canada by his father at the age of nine. The lone survivor of a 2002 U.S. assault on an Afghan compound, Khadr was accused of throwing a grenade that killed a U.S. soldier.

But as he entered his guilty plea this morning -- after the government agreed he'd serve just one more year at Guantanamo Bay, and an as-yet-unspecified number of years in Canada -- it was clear that prosecutors had taken the opportunity to throw the kitchen-sink-full of charges at him - including far more crimes than he'd even been charged with. Most importantly, Khadr pled guilty to the murder of two Afghan soldiers who accompanied U.S. forces in the 2002 assault on the compound. The government has never presented any evidence whatsoever that Khadr was responsible for that.

That Khadr pled to this and the range of other charges that the government first unveiled today (details will not be available until the military commissions publicly release the stipulation signed by Khadr tomorrow) is hardly surprising. Ever since Judge Patrick Parrish ruled that Khadr's statements made to interrogators after he was threatened with gang-rape, coerced and possibly tortured were admissible, his defense was sure to be challenging. Although the government did not appear to have any forensic or eyewitness testimony to support its murder charge, government interrogators planned to testify that Khadr had willingly told them that he threw the grenade that killed Sergeant First Class Christopher Speer. Whether he said that because it was true, or because he was a scared and wounded 15-year-old expecting a quick release for telling his interrogators what they wanted to hear, we'll never know. (Khadr was shot multiple times and severely wounded in the firefight, which left him blind in one eye; he still has shrapnel in the other.)

Khadr's sentencing hearing begins tomorrow. Although the plea agreement contains a recommended sentence (news reports have said it's 8 years total) that deal will remain secret until the military commission sworn to act as a jury in this case issues its own sentence based on live testimony. The government will present witnesses to describe the effects of improvised explosive devices, and the testimony of Sergeant Speer's widow about her loss. Khadr's lawyers will put forth psychological and psychiatric experts to talk about the impacts of torture on him and likely about the ability of a 15-year-old youth to appreciate the wrongfulness of his acts, particularly when they were directed by the adults around him.

But all of this is hardly a vindication of the U.S. military commission system. After the plea was entered this morning, chief prosecutor Captain John Murphy told reporters that Khadr "stands convicted of being a murderer and also being an Al Qaeda terrorist" based on "his own words."

To be sure, Judge Parrish took pains today to ask Khadr if he was entering his guilty plea knowingly, and fully understanding the consequences. Khadr nodded and quietly answered "yes." But in truth, he had little choice. If Khadr had gone to trial, he faced a potential life sentence from a military jury, who would hear how he "confessed" to the crimes in interrogation. He could have faced many more years in prison. What's more, the U.S. maintains the right to indefinitely detain him even if he was found not guilty. Ironically, all but one of the other four detainees found guilty in military commissions have gone home, while dozens of remaining Guantanamo detainees who have never been charged with a crime continue to languish.

For Khadr, then, today's guilty plea was probably the right choice. His Canadian lawyers are likely to challenge his sentence as unlawful as soon as he's transferred to Canada. (The "diplomatic notes" reached between the U.S. and Canadian governments that will likely allow his transfer after a year in U.S. custody are still secret but will be released with the plea agreement after the commission members recommend their sentence.)

For the U.S. government, the guilty plea was a way to save face. After all, the Obama administration knew that it was a political embarrassment for its first military commission trial to be of a child soldier - a contradiction of its obligations under international law to rehabilitate child soldiers rather than punish them. The administration also knew that the charges against Khadr were all legally dubious - invalid under international law and a violation of the ex post facto clause of the U.S. Constitution. Khadr's guilty plea allows them to rack up another "win" for the military commissions, pushing the total to a whopping five convictions in the last eight years. By contrast, U.S. civilian federal courts have convicted more than 400 terrorists in that same time period. This doesn't exactly tip the balance.

Still, no matter how you look at it, this plea makes a troubling statement about the United States' respect for the rule of law. Although as part of his plea agreement Omar Khadr has waived his right to appeal his conviction or to sue the United States for his confinement or treatment, a dark cloud continues to shadow this case. That cloud will continue to conceal the truth about Omar Khadr's treatment at the hands of his U.S. interrogators; and it will ensure that the validity of his conviction, and the integrity of the military commissions themselves, 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.

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