18 Nov Wittes on the Ghailani Verdict
I don’t have time to respond to the Ghailani verdict, which Julian notes below. I would simply direct readers to Ben Wittes’ superb post at Lawfare, in which he criticizes those who view the verdict as a vindication of the military commissions. Here’s a snippet:
Second, it really is not clear that prosecutors would have fared better in a military commission. There is a fairly pervasive myth that military commissions represent the tough option, while federal courts represent the soft, wussy option. You know the trope: Military commissions represent a war mentality (tough, manly, conservative), while federal courts represent a pre-9/11 law enforcement mentality (weak, emasculated, liberal). The gross underperformance of the military commissions over many years has not shaken the trope, nor has their quiet development towards greater due process norms. There is no particular reason to think that the government would have gotten in before the key witness that the court in New York excluded. The simple reality is that one cost of interrogating Ghailani in the CIA’s high-value program over a long period of time is to make any subsequent trial difficult.
Read the entire post!
What it strike me is that the discussion is about the success of punishing the guy, not about due process and innocence. In those discussions one would consider it a full success if the guy gets a death penalty, less success if he gets life without parole, even if the guy is innocent. The only thing one cares about is that one legitimizes the Guantanamo, the Abu Ghraib, the renditions, the drones and all the rest, that the U.S. gets its will imposed on the rest of the world, not the questions about the rule of law, or about whether the U.S. is right or wrong. Thus those discussions in the best case are not about the law, despite their pretense, and in the worst case are just begging the question; what should be proved is just assumed. This reminds me of one of the conclusions in the “Report of the Defense Science Board Task Force Strategic Communication”: “Muslims see Americans as strangely narcissistic – namely, that the war is all about us. As the Muslims see it, everything about the war is – for Americans – really no more than an extension of American domestic politics and its great… Read more »
Agreed! What I find most appalling about the debate is the tacit assumption that the civilian system is only legitimate if it leads to convictions and long prison sentences, as if no one prosecuted in that system (or in the military commissions) could ever be innocent. Given the government’s track-record at Gitmo, I find that a dubious assumption, to say the least.
While Ghailani seems to have been found guilty of some damage to US property, the real crime was the death of 212 and injury of 4000 civilians who were mostly Kenyans in Kenya. So instead of asking what US court he should be tried in, how about extraditing him to Kenya and Tanzania to stand trial under an arrangement where if he is not given a more severe sentence, he is returned to the US. It would seem that this crime is better handled by the countries that really suffered from it.
I am trying to get this up at Jurist or SALT. In the meantime here it is. Best, Ben Ghailani Verdict: Hooray for American Justice! An American jury has convicted Ahmed Ghailani of conspiracy and acquitted him of other charges for the 1998 Embassy bombings in an ordinary civilian court in New York. Ghailani faces 20 years to life as punishment for the crime for which he stands convicted. The press is stating that this decision is a disaster. Why? Because the judge excluded evidence tainted by torture and the jury heard the evidence deemed proper and acquitted the defendant on all but one of the charges. This case is only a disaster for those who wanted to create ersatz justice in a kangaroo military commission system that was and is (as I have explained many times in many places) a third class process hermetically sealing foreigners in a conviction machine. A jury deliberative process occurred in New York civilian court not a plea deal in a military commission system in which the charges are shaped inconsistent with international law, the evidence is shaped to permit introduction of tortured statements, and the procedure is shaped to create a… Read more »
Kenya and Tanzania are free to request extradition. We can imagine that happening at the end of his term here as happened with Noriega when he was sent to France to face French charges at the end of his US incarceration.
Best,
Ben
The assumption or assertion that military commissions are designed or fated to result in erroneous convictions and punishment is false. Salim Hamdan was acquitted of some charges at his military commission and received a reasonable sentence. Whatever one wants to say about the fairness of the process by which guilt or innocence is determined, or the substantive offenses over which commissions have jurisdiction, it is highly inappropriate, in my humble opinion, to impugn the character of every U.S. service member involved in that process by making such claims. In my experience, military officers take their oaths and affirmations seriously, and administer justice fairly.
There is an elaborate internal system for determining priority and handing off accused criminals between states and with the Federal court system. Certainly a criminal does not have to serve his sentence in one jurisdiction before he stands trial in another sovereign jurisdiction within the US. Admitting that there is no obligation for the US to extradite Ghailani before he has served his sentence, is there any problem in international law with the US voluntarily transferring him to another country to stand trial while retaining a right to request his return to serve out his sentence after that trial. Is there any principle that precludes such an arrangement or introduces serious new problems? Is this just a bilateral question of US and Kenyan law?
We may have been willing to pay the big reward bucks to get him in the first place, but our interest in the crime is far less direct and serious than that of Kenya. While Kenya may decide not admit into evidence any confession extracted under duress, we may speculate that they would have less trouble admitting voluntary witness testimony based on allegations of misbehavior by some other country over which they had no control.
I respectfully disagree with John C Dehn. I impugn every single person that is involved with this military commissions system from its inception in the Presidential Military Order to today. The system is part and parcel of an effort to permit testimony from torture to be admitted in an ersatz legal procedure hermetically sealed fo foreigners and tipped oh so cynically in favor of the state so as assure convictions even on the flimsiest of reliable evidence. That all of Khadr’s attorneys – in the most recent case – said that the system is flawed, that prosecutors and defense counsel have objected to its flaws, that the judges have taken decisions that admit evidence that I do not think would be admitted in a federal court takes the mask off this process. People who are working on this all may be fine people, but the bottom line is that they are participating in the charade to give a patina of “process” to what is a rigged game. I do believe that those same people know exactly what this game is but rationalize this by saying they are doing their duty (reform from within) or really don’t care (honor bound to… Read more »
I respectfully disagree with John C Dehn. I impugn every single person that is involved with this military commissions system from its inception in the Presidential Military Order to today. The system is part and parcel of an effort to permit testimony from torture to be admitted in an ersatz legal procedure hermetically sealed for foreigners and tipped oh so cynically in favor of the state so as to assure convictions even on the flimsiest of reliable evidence. That all of Khadr’s attorneys – in the most recent case – said that the system is flawed, that prosecutors and defense counsel have objected to its flaws, that the judges have taken decisions that admit evidence that I do not think would be admitted in a federal court takes the mask off this process. The rainbow coalition of people who are working on this all may be fine people, but the bottom line is that they are participating in the charade to give a patina of “process” to what is a rigged game. I do believe that those same people know exactly what this game is but rationalize this by saying they are doing their duty (reform from within) or really… Read more »
Interesting article on the strategic decisions about military commission/criminal court and how the Ghailani case got to civilian court. Note in particular the two memos of the federal criminal prosecutors and the military commission prosecutors reflecting different approaches to the tainted evidence.
Best,
Ben
N.Y. / REGION
| November 19, 2010
At Terror Trial, Big Questions Were Avoided
By BENJAMIN WEISER and CHARLIE SAVAGE
The civilian trial of Ahmed Khalfan Ghailani avoided aspects of his case that had made it fiercely debated.