17 Nov Time to Give Up on Civilian Trials for Gitmo Detainees
Wow! The first civilian trial of a Gitmo detainee, Ahmed Ghailani, results in a near-acquittal.
The first former Guantanamo Bay detainee to be tried in federal criminal court was found not guilty on Wednesday on all but one of the 285 counts he faced for his role in the 1998 East Africa embassy bombings.
The Washington Post reporter follows up this lead with an unsourced assertion that is, however, totally right:
The verdict will likely kill the already fading prospect of putting other Guantanamo detainees on trial in U.S. civilian courts.
And welcome to indefinite detention, Mr. Khalid Sheikh Mohammed! How did we get here to a result that no one is really happy with? It’s a long story, and it looks like we will get to hear all about it when the new Republican House holds excruciatingly hostile hearings on this subject.
Wrong!
Theodor Meron who headed the International Criminal Tribunal for Yugoslavia said that his tribunal was judged more by its acquittals than its convictions. This to me is a really excellent statement – an American jury acquits the guy on the evidence and convicts him on the evidence.
Not a kangaroo court but the ordinary procedures of our criminal justice system – with their flaws. He faces 20 years to life according to the story. This is the case where the judge excluded coerced testimony. Very powerful statement about rule of law going on here. Judicial forms
and judicial norms are what we are seeking – not show trials.
Best,
Ben
[…] (if they are allowed a trial).The ruling is considered a setback by the government and will likely end civilian trials for Guantanamo […]
I don’t see how the fact that Ghailani, a low level functionary whose prosecution was compromised by CIA torture, has been duly convicted by a regular court that will merit international respect and now faces 20 years to life is a “failure.” A military commission, in contrast, would have no lawful jurisdiction over conduct taking place in 1998 given that the political branches of the United States did not recognize the struggle against al Qaeda as rising to a state of war until September 11, 2001. The Supreme Court has established clear rules for military commission jurisdiction, which include requirements that charged conduct constitute a recognized violation of the law of war and that the conduct and trial must take place in the period between the “declaration of war” and the conclusion of the final peace. Article III courts and military commissions are not fungible, and military jurisdiction over Ghailani should not have stood up on either the direct review or collateral challenges inevitable from any contested military commission prosecutions. Sure, the government would now argue that Osama bin Laden declared war on the U.S. numerous times before 9/11, but al Qaeda is not an organization entitled to wage war on the U.S., or anyone… Read more »
Those guys should get a trial in accordance with the international norms. Even more, for the future, one should work to develop international courts where individuals could sue states and demand that states act in certain ways when the states violate their rights. For instance Ghailani or other Guantanamo inmates should be able to sue US at an international court and demand that they are either given fair trials or they are released.
While he may have been acquitted, I doubt the result would have been any better in a military commission (if his trial in such a venue was even possible). It’s amazing how people keep on pushing commissions as the tougher, faster, more efficacious option when their history shows that they’re anything but those things.
Far from showing that the civilian court system is the inappropriate venue to try alleged/admitted terrorists, this case shows the folly in using “enhanced” interrogation techniques and vindicates the rule of law.
Response…
Yes, yes, yes, and when will the Obama Administration finally learn that GTMO military commissions, even under the Milt. Comm. Act, are not a legal alternative to federal district courts. See, e.g., our H.R. Com. of the ABILA amici brief — at http://ssrn.com/abstract=1547364
I seem to recall President Clinton using the US Military in retaliation for Al Qaeda, or UBL attacks on our embassies and such, so it didn’t take Sept 11th to turn it from civilian criminal issue to a military one.
As we are currently in a war (whether people say it is legally one or not) why can’t we hold KSM for the duration of the war? I thought those were the general rules? You capture the enemy, you detain them while the war continues.
Why should the US be punished because Al Qaeda wants to keep fighting indefinitely? KSM made his choice and a long term detention upon capture was one of the risks.