The first Guantanamo Bay detainee to be tried in a civilian court, he was acquitted however, on the other 284 counts, including 224 for murder, one for each victim of the bombings of the US embassies in Nairobi and Dar es Salaam in 1998.
The prosecutors plan to demand the maximum penalty when Ahmed Khalfan Ghailani is sentenced next January, that is to say, life in prison.
Quite predictably however, opponents of the Obama administration, which has pledged to try some Guantanamo detainees in US civilian courts, seized on the verdict to excoriate the President and Attorney General Eric Holder, deeming that all terrorists suspects (for, until they have been tried and convicted, are but that, suspects) should be tried solely by military commissions.
Liz Cheney, daughter of the former Vice -President, and head of the conservative organization Keep America Safe, issued a statement that began thus:
The Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war.
For such critics, conducting a fair trial for a terrorism suspect, which, by definition, will preserve and respect the rights of the accused, is by nature reckless.
For them, civilian courts and jurors obviously cannot be trusted to deliver the only verdict that is acceptable in such cases, and in a time of war, a guilty one…
Hence, to expect them to bring this about is akin to rolling the dice.
If the evidence against these suspects is so sound and convincing, then why are these critics making such a claim?
Ironically, the fundamental strengths of the civilian court system, the examination and evaluation of the evidence presented by the prosecution and cross-examined by the defense is in fact, a liability for these critics.
For, if the evidence fails to convince a jury, the defendant could actually be acquitted, an unconscionable act for them.
As far as they are concerned, terrorists are to be judged by special courts, convicted and locked away, if not given the death penalty, and certainly not acquitted or partially acquitted during a free and fair trial.
The latter are for Americans, not foreign terrorists…
Failing to convict these terrorists on all counts sends the wrong message to our enemies. It’s dangerous. It signals weakness in a time of war, according to Keep America Safe.
Weakness?
When a democracy resorts to the rule of law and civilian courts, where the rights of both the prosecution and the defendant are scrupulously respected, to try terrorism suspects, is it truly putting its weakness on display?
A democracy remains true to itself and its values by always adhering to the rule of law even when, or especially when, dealing with enemies who hold both human life and justice in contempt.
In addition, which is the more efficient method to combat Islamic extremism?
Detain them for years in secret prisons and Guantanamo, subject them to abject abuse and torture, try them in special courts that deny them their fundamental rights and before which no American citizen would ever be brought, when they are tried at all, or subject them to the same rules that we reserve for ourselves, and ensure that they are treated humanely and fairly?
Which method does more to validate and vindicate al-Qaeda’s anti-Western ideology, to inflame Muslim public opinion against the West, to recruit additional militants in al-Qaeda’s anti-western, nihilistic jihad, the former or the latter?
The best way, the only way to discredit the fanatics and their vile tactics and inflammatory language is to steadfastly remain ourselves, and not resort to practices that only thuggish regimes utilize…
Secret detention, endless detention, abuse, torture, bogus trials, this is what the extremists thrive on and use to fuel their followers‘ bitterness and wrath toward the West…
Remaining true to itself and its laws thus, in no way undermines a society and its ability to defend itself from external threats such as terrorism, but actually strengthens it.
In addition, would not our image in the Islamic world measurably improve if we ceased invading and occupying Muslim countries, refrain from killing hundreds if not thousands of Muslims each year, and made an even half-hearted attempt to resolve the Palestinian question?
In essence, the more we respect our own principles and values, the feebler the Islamic extremist movements will become…
For many Republicans however, such as Peter King, the future chairman of the House of Representatives’ homeland security committee, civilian courts cannot deliver their brand of justice.
He characterized the Ghailani verdict as a total miscarriage of justice, and added, this tragic verdict demonstrates the absolute insanity of the Obama administration’s decision to try al-Qaeda terrorists in civilian courts.
What is tragic about a verdict delivered by an independent, civilian jury that simply examined the evidence (the admissible evidence, that is) and responded as it saw fit?
In a democracy, that is called justice.
What must also be mentioned however is that none of the defendants are al-Qaeda terrorists until they have been recognized as such by a court.
For Mr. King and his like-minded colleagues, the simple fact that someone has been detained in Guantanamo and thus recognized as an unlawful combatant by the President is sufficient proof of guilt.
Why then, bother conducting a fair trial that may expose the evidence against many suspects for what it is, bogus and tainted?
The trial becomes a mere formality, when there actually is one, designed to sentence the guilty to the most severe penalty possible.
That is how you treat enemies during a time of war, according to the Bush/Cheney/King school of constitutional rights.
These people are warriors, to quote Senator Graham, but unlawful ones, such that the President who has designated them as such can them deprive them of their rights at the stroke of a pen, particularly the right to a fair trial.
These foreigners simply do not deserve one, for the simple fact that they allegedly dared to attack America, and by doing so, forfeited all the rights civilized nations afford not only their citizens but also those individuals that fall under their jurisdiction.
It is this conception of justice that many would characterize as total insanity.
Mr. King considers insane the proposition that the rights of all human beings should be respected, even those of one’s enemies.
Incidentally, Mr. King has enthusiastically defended George Bush for approving the use of waterboarding on detainees such as Khalid Sheikh Mohammed, the 9/11 mastermind, and even suggested that the former President should get a medal for having done so.
Currently on a book tour, Mr. Bush has repeatedly boasted having authorized it against terrorist suspects.
Waterboarding however, is considered a war crime by all civilized countries including the US, until the Bush/Cheney presidency, that is.
In fact, during the Tokyo Trials convened at the conclusion of WWII, Japanese soldiers were prosecuted for having committed acts of torture that included waterboarding.
The Japanese were tried, convicted, and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding, John McCain himself told reporters in 2007.
Amnesty International and the ACLU have called for an investigation to examine whether or not former President Bush did violate US and international law banning the use of torture.
Will Attorney General Eric Holder consider appointing a special prosecutor?
This is highly unlikely even though the US is under the legal obligation to investigate all potential violations of the ban on torture committed by its citizens. If it does not, foreign nations may elect to do so.
Yet, President Obama having established at the outset of his mandate that he wanted to look forward and not backward, it is highly unlikely Mr. Holder will take the slightest initiative to satisfy the demands of Amnesty International and the ACLU.
The President himself however, while visiting Indonesia earlier this month, urged his hosts to investigate the abuses of the Suharto regime.
We can’t go forward without looking backwards, he told them.
Why should that be true for Indonesia but not for the US?
In the end, is Mr. King evenly remotely interested in justice?
We must try them (al-Qaeda terrorists) as wartime enemies and try them in military commissions at Guantanamo, he added.
Why?
Evidence obtained through coercion and torture is inadmissible in a civilian court.
Case in point, prosecutors in the Ghailani case declined to present his confession as evidence during the trial.
The statements obtained while he was detained illegally in one of the CIA’s secret prisons and then at Guantanamo were coerced and obtained under duress, according to his lawyers.
Furthermore, US District Judge Lewis Kaplan who presided over the proceedings refused to authorize the testimony of a potentially giant witness for the government, Hussein Abebe, a Tanzanian who allegedly sold Ghailani the explosives that were then used during the embassy attacks.
Investigators learned of the witness’ existence during the interrogation sessions held at the secret prison and then at Guantanamo.
Since Ghailani was most probably tortured during his detention, any information thus obtained was deemed inadmissible by the court, and rightly so.
As a result, the opponents of civilian, thus fair trials were quick to point out that only military commissions could adequately try terrorist suspects.
The judge in this case, applying constitutional and legal standards to which all U.S. citizens are entitled, threw out important evidence. The result is that the jury acquitted on all but one conspiracy count, Lamar Smith, future Judiciary Committee Chairman from Texas, told the NYT.
For the supporters of military commissions, that the important evidence was obtained through torture is irrelevant.
Military commissions were created for this very purpose: convict defendants with evidence (the accuracy of which is also irrelevant as long as it is incriminating) that no civilian court could ever take seriously, and thus admit it as such.
Omar Khadr’s confession obtained, like Ghailani’s under torture, was declared admissible by the presiding military judge at his militarty commission trial.
The military commissions serve one purpose and one purpose only: deliver a guilty verdict, or threaten detainees with life imprisonment in order to extort a plea bargain whereby they recognize their guilt in exchange of a more lenient sentence, as in the Omar Khadr case (I hope to deal with this in a future post).
Constitutional and legal standards only apply to US citizens, these supporters of torture and military commissions erroneously claim.
As such these foreigners, even if, like Khadr, they were only fifteen when apprehended by US forces, will have to settle for military commissions (if they are to be tried at all and not condemned by the President to indefinite detention), where tainted evidence is welcome, and skeptical jurors absent altogether.
US Army officers are considered more reliable to produce the desired (guilty) verdict.
This is what the Cheneys, Smiths and Kings call justice…
Ironically, it is the very tactics employed by the Bush/Cheney administration and enthusiastically supported by MM. King, Smith and Ms. Cheney and so many other Republicans and not a few Democrats, the enhanced interrogation techniques (and what everyone else call torture), that produced the verdict now so shrilly denounced as inadequate by these apologists of torture!
Unfortunately, however, this verdict, and the rabid attacks that followed it, may lead the Obama administration to conclude it is unwise to try Khalid Sheik Mohammed in a civilian court, as it had vowed to do one year ago.
It may now decide that choosing the civilian trial may be too politically risky and burdensome.
Indeed, how much legitimate, untainted evidence against Mohammed is available, and would it be sufficient to convince a jury to convict him?
Would a military commissions trial be satisfactory and credible?
Assuredly not.
Hence, Obama may be tempted to resort to the most unacceptable and morally repugnant of options: indefinite detention…
This disgraceful option would simply comfort those critics of Guantanamo who have always claimed that it was nothing but a modern-day Bastille, where individuals are arbitrarily detained by royal fiat, the presidential, lettres de cachet, and beyond the reach of the law and justice.
What is equally clear, his declarations to the contrary notwithstanding, is that Obama has no intention of closing Guantanamo as promised.
He did not think it worth his while to expend the necessary political capital do so while the Democrats held the majority in Congress. Now that he has lost the House, this issue will be for the next President to address or not.
Mr. King made this quite clear: they couldn’t come close to getting that done when the democrats were in charge. There’s no way they’re going to get it now that Republicans are in charge, he declared…No less was expected of him…
The enemies of justice and democracy lurk not only on the rugged Afghan-Pakistan border but in Washington as well.
These US militants, we presume unwittingly, are trying to accomplish what bin Laden could only dream of and that his nemesis Bush/Cheney initiated so potently, the subversion of the nation’s values and constitution, all in the name of preserving freedom and security and winning their sacrosanct war on terror.
What is deeply disappointing is that Obama did not see fit to decisively reverse course and base the political and ideological struggle against Islamic extremism (you may have noticed I did not use the expression war, for this is a struggle military forces are doomed to lose) on the values of justice and democracy, universal values at that, and not on the perversion of them which is what the Bush/Cheney supporters and torture enthusiasts chose to do, hoping to shock and awe their foes into submission…
On the day after his inauguration, Obama vowed to continue the struggle against terrorism, but he said, we are going to do so in a manner that is consistent with our values and our ideals.
The Republicans and many Democrats have clearly turned their backs on such a principled approach.
Let us hope President Obama will not do likewise…
Success in the struggle against al-Qaeda and their followers depends on it.
(the photograph of Ahmed Khalfan Ghailani can was found here)
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