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.

 

 

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.

 

 

Alleged Al Qaeda Terrorist Trial Begins This Week in NYC Courtroom

When Ahmed Khalfan Ghailani was first transferred to New York from Guantanamo Bay last year, House Republican leader John Boehner of Ohio called it "the first step in the Democrats' plan to import terrorists into America."

More than a year later, Ghailani remains the only detainee from Guantanamo Bay to be brought to the United States. He's scheduled to go on trial starting this week in lower Manhattan. Jury selection begins Monday.

Ghailani is a Tanzanian accused of helping to bomb two U.S. embassies in East Africa in 1998 that killed 224 people. Like the September 11, 2001 attacks, those bombings have been attributed to Osama bin Laden.

In hundreds of legal charges filed with the federal court in New York, Ghailani is accused of having scouted out the American embassy in Tanzania before it was bombed, assembled bomb materials and escorted the suicide bomber to the site. After the bombings, prosecutors say he fled to Afghanistan and rose up the ranks of al Qaeda, forging documents for the group and working as a cook and a bodyguard for Osama bin Laden.

When he was captured in Pakistan in 2004, U.S. authorities deemed Ghailani a "high-value" detainee and sent him to a secret CIA prison for interrogation, where Ghailani claims he was tortured. Indeed, a variety of so-called "enhanced interrogation techniques," including waterboarding, were authorized for use by CIA interrogators on high-value detainees.

Ghailani was transferred to Guantanamo Bay in 2006. Last year, more than ten years after the embassy bombings, he was transferred to the New York prison. The same prison has safely held such notorious criminals as John Gotti and the blind terror leader Sheik Omar Abdel-Rahman.

Critics of Ghailani's transfer warned that his prosecution could be derailed by his abuse in prison and the long delay in bringing him to trial. But the federal judge hearing the case, Judge Lewis A. Kaplan, has denied the defense lawyers' requests to dismiss the trial on those grounds.

Last week, former New York mayor Rudy Giuliani insisted that it would be safer to try Ghailani in a military commission in Guantanamo Bay than in New York City.

Ghailani has already appeared in court for pretrial hearings, however, without incident. New York City police have said that while they will provide some extra security for the trial, the proceedingswill not require any of the elaborate and costly measures that New York City officials had warned would be necessary for a trial of the 9/11 plotters. After receiving complaints from local business groups about the potential disruption that trial might cause, Police Commissioner Ray Kelly announced that he would take a range of extraordinary security measures, including a flood of uniformed police officers, checkpoints and thousands of interlocking metal barriers. Mayor Bloomberg estimated the cost at $200 million a year, and the Obama administration soon backed away from the plan.

Despite the huge costs and inconvenience predicted for the 9-11 plotters' trial, no such estimates have been made for the trials of any of those accused of carrying out al Qaeda's U.S. embassy bombing attacks.

Four other men have already been tried and convicted in the same New York courthouse for their roles in the U.S. embassy attacks. All were sentenced to life in prison without parole.

 

 

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.

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