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 game. This perception is of course necessarily heightened by election-year atmospherics, but nonetheless sustains their impression that when Americans talk to Muslims they are really just talking to themselves.”
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 tilted playing field in favor of the state and against the defendant.
The New York jury deliberated and it struggled. It was terribly difficult for them from published reports. But it is the best that we have.
We can expect from the right scathing criticisms from those who supported the use of torture all these years trying to intimidate the Obama Administration into not holding anymore civilian trials for detainees. Already, we have seen the Obama Administration begin to signal it’s unwillingness to try Khalid Sheikh Mohammed in New York because of bipartisan objections to a civilian trial and begin to imagine indefinite detention for him. We can expect from the left a minimum of support for the terrific judge who heard the case and the jury that did its job for fear of being seen as “soft on terror”.
To hell with those critiques on the left or the right! Hooray for American Justice!
A great leader of an international criminal tribunal once told me that the test of his tribunal had been not in its convictions of horrendous perpetrators but in its acquittals. Justice Robert Jackson emphasized in 1945 that for judicial norms and judicial forms to be present, a defendant has to be able to prove his innocence in the procedure. That is precisely what happened in this case for Mr. Ghailani for many of the charges against him.
That is the rule of law – not the lynchmob law of military commissions under the current system, not the kind of “law” practices from the old segregated South that Judge James Robertson warned about in his obiter dicta while allowing Hamdan’s military commission to go forward about which I wrote about in my “No Third Class Processes for Foreigners” (No Third Class Processes for Foreigners, 103 Nw. U. L. Rev. Colloquy 88 (2008)).
This New York jury and that judge showed that a trial can be had and a verdict rendered on the basis of evidence in a procedure that is consistent with the best of the American system.
That New York jury and that judge has sent a tremendous message to the terrorists of the world that we will not be further stampeded into giving up what is best about our system in fear of all they can throw at us.
That New York jury and that judge have shown the world that – at least these New Yorkers – are not wimps but are willing to stand up and do their civic duty in the highest tradition of our legal system. Would that the rest of the New Yorkers would pipe down and let KSM be tried in New York – scene of the crime. Trauma from crimes is part and parcel of criminal justice – and we always prefer to try the defendant in the jurisdiction where the crime was committed.
That New York jury and that judge showed that secret evidence can be successfully dealt with in an open civilian court or in camera proceedings as needed. Not in some hideaway process with only select few permitted to go there on some obscure island in the Caribbean.
That New York jury and that judge showed once again that the civilian courts are capable of providing swift and sure justice if given a chance after all the fumbling around that has been done with these defendants held at Gitmo.
That New York jury and judge have shown that those in the current or past state who seek to demean the United States through torture can be sanctioned in precisely the way that hurts them the most by having the fruits of their torture revealed, discarded, and by ensuring that the tortured evidence not besmirch the quality of justice that we render. We will not let justice descend to their animalistic level.
We will rather have the accused face the light of day in as open a regularly constituted judicial forum as we have in which we provide our strictest norms built in the bedrock of our Constitution and consistent with our international obligations.
This is a wonderful day for the United States – beginning to come out of a dark night of repression led by those who sought to repress all that is good in us by playing on our fears and who do not trust what is the heart of our system.
Today the beating heart of what America is about overcame the fear, overcame the spinelessness of so many, and overcame the worst in us and made a reasoned decision in accordance with well-founded law. That is something we all should be celebrating.
Let the naysayers hold their hearings! Let the punditry fill the conflictonator with all the vile words they want!
But while that goes on, let us salute Judge Lewis Kaplan and the men and women of that jury who gave Mr. Ghailani a fair day in court. That is what we ask of judicial forms – and we got that here. Wow! What a wonderful day!
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 defend freedom).
Whatever their motives, their participation in this charade undermines rather than enhances the rule of law in this country. That these military commissions were put in by the Executive alone first (ignoring 60 odd years of military justice history) or revised in bipartisan Executive-Legislative iterations in 2006 and 2009 simply leaves me cold. The point is that, in this heated political environment and as evidenced by the profoundly “lynchmob upset” nature of the responses to the Ghailani verdict, what our soldiers fight to defend is not ersatz justice of the military commission kind. They fight to preserve the kind of justice our courts-martial and courts provide.
Keep our honor clean is not just a phrase in one service’s hymn. It is something that should bind all of us in this fight against terrorists. Those jurors in New York and that judge did that in New York. Those “going along” in the military commissions have not.
Sorry to have to be the one to state it like that and bust some illusions of people, but that’s the way it looks to me.
I am sure that fine people stood around and looked at lynchings – people who thought they were decent and loved their kids. That does not lessen the fact that they were undermining the rule of law in a form of mob justice only a slightly distant cousin away from these military commissions.
But what do I know.
Best,
Ben
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 don’t care (honor bound to defend freedom).
Whatever their motives, their participation in this charade undermines rather than enhances the rule of law in this country. That these military commissions were put in by the Executive alone first (ignoring 60 odd years of military justice history) or revised in bipartisan Executive-Legislative iterations in 2006 and 2009 simply leaves me cold. The point is that, in this heated political environment and as evidenced by the profoundly “lynchmob upset” nature of the responses to the Ghailani verdict, what our soldiers fight to defend is not ersatz justice of the military commission kind. They fight to preserve the kind of justice our courts-martial and courts provide.
Keep our honor clean is not just a phrase in one service’s hymn. It is something that should bind all of us in this fight against terrorists. Those jurors in New York and that judge did that in New York. They are the rainbow coalition with who I stand.
Those “going along” in the military commissions have not.
Sorry to have to be the one to state it like that and bust some illusions of people, but that’s the way it looks to me.
I am sure that fine people stood around and looked at lynchings – people who thought they were decent and loved their kids. That does not lessen the fact that they were undermining the rule of law in a form of mob justice only a slightly distant cousin away from these military commissions.
But what do I know.
Best,
Ben
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.