The Show (Trial) Must Go On!
As noted earlier today, the government case against terrorist Ahmed Ghailani, charged with the 1998 bombings of U.S. embassies in Tanzania and Kenya, has ended with something of a thud: Ghailani was convicted on just one count (out of 281!), largely because the presiding judge threw out testimony he ruled was the result of torture and coercion.
Conservatives (read: Republicans) are saying that this is the predictable outcome of trying such cases in civilian, as opposed to military, courts. At Salon, Glenn Greenwald says that's wrong. Such claims, he argues, are based on the
the false premise -- found at the center of every attack on the Obama DOJ's conduct here -- that the key witness would not have been excluded had Ghailani had been put before a military commission at Guantanamo. That is simply untrue. The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do.
Emphasis his. I don't know if that's generally accurate or on-target in this specific case or not, but Greenwald raises broader questions that should trouble anyone concerned about larger civil liberties issues (and should assuage anxiety for those who worry that Ghailiani will be out on the streets anytime soon):
Even had he been acquitted on all counts, the Obama administration had made clear that it would simply continue to imprison him anyway under what it claims is the President's "post-acquittal detention power" -- i.e., when an accused Terrorist is wholly acquitted in court, he can still be imprisoned indefinitely by the U.S. Government under the "law of war" even when the factual bases for the claim that he's an "enemy combatant" (i.e. that he blew up the two embassies) are the same ones underlying the crimes for which he was fully acquitted after a full trial. When he banned the testimony of the key witness, Judge Kaplan, somewhat cravenly, alluded to and implicitly endorsed this extraordinary detention theory as a means of assuring the public he had done nothing to endanger them with his ruling (emphasis added):
[Ghailani's] status as an "enemy combatant" probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.
Again, emphasis Greenwald's.
Greenwald makes a persuasive case that such legal proceedings, whether conducted in military or civil courts, amount to little more than show trials.
