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.

 

 

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.

What We Need to Hear About the Torture Report

At 10 a.m. on Friday, February 26, the Senate Judiciary Committee will hold a hearing on theOffice of Professional Responsibility's investigation into the Justice Department memos that authorized the torture of detainees in U.S. custody during the Bush administration.

That's a good start for a committee that's closely followed this issue, but it should be just the beginning.

Human Rights First will be attending and blogging on the hearing. We'll also be answering readers' questions about the report, the Senate hearing, and the various ways of holding accountable the government officials who participated in plans to interrogate prisoners using torture and cruel, inhuman, and degrading treatment.

So far, the only witness scheduled to testify at that hearing is Gary G. Grindler, the Acting Deputy Attorney General who's temporarily replaced David Ogden, the senior DOJ official who resigned in December.

Given that the OPR report found that Office of Legal Counsel lawyers deliberately or "recklessly" twisted the law to justify the use of interrogation techniques that amounted to torture, the Justice Department now has strong evidence of a criminal conspiracy. But we need to know more, and we hope the Senators on the Judiciary Committee tomorrow will be asking the right questions.

Here are some questions we'd like to put to the Justice Department, and to the Committee:

1) Where will the Justice Department take this investigation from here? What are the next steps?

2) The OPR said its investigation was hampered by the mysterious disappearance of John Yoo's e-mails, as well as those of his colleague, Patrick Philbin. The FBI has the technology necessary to recover deleted emails. Will the Justice Department employ that technology?

3) The disappearance of Yoo's and Philbin's e-mails are more than just suspicious. It may amount to a deliberate obstruction of justice. Will DOJ investigate when and why the messages were deleted, and whether their deletion amounts to a crime?

4) In addition to the missing e-mails, the OPR investigators noted that many key witnesses "declined" to speak with OPR, seriously limiting its investigation. Witnesses who refused to speak to investigators included every former White House official except Alberto Gonzales, and almost all of the CIA attorneys. CIA records also were not available. Only by collecting all of this relevant evidence can we know what instructions White House and CIA officials gave to the OLC lawyers, and whether the lawyers were told to draft legal justifications for what both lawyer and client knew was criminal conduct. Will DOJ use its subpoena power to require those witnesses to provide testimony and relevant records?

5) The Justice Department has so far suggested that it will not criminally investigate the conduct of any senior officials or lawyers in the prior administration. Will the Senate Judiciary Committee schedule further hearings of its own to find the answers to these questions?

6) Some lawmakers have proposed an independent, nonpartisan "Commission of Inquiry" to investigate how the U.S. came to abuse and torture detainees. A commission could go a long way toward revealing what really happened and making concrete recommendations to keep it from happening again. Will the Justice Department and Senate Judiciary Committee support creating a commission to ensure that we learn from our past mistakes?

Please suggest any more questions you'd like to see answered, and follow up with any questions for us after the hearing!

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