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.

Read more here.

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  • ||

    We can't let a prisoner have a trial if they're just going to get acquitted, dummy.

  • Upgrayyed||

    They're all guilty of something anywayz.

  • Hugh Akston||

    Revealing the hollow nature of these proceedings won't assuage anyone's anger over these suspects getting their constitutional due. People still bitch about how The Sopranos ended.

  • Tony Soprano||

    Yeah, what the fuck was that, anyway? I don't even know what happened to me.

  • robc||

    Bush never claimed post-acquittal detention powers. I doubt McCain would have. Im pretty damn sure Barr wouldnt have.

    Anyone want to defend their vote for Obama on civil liberties grounds again?

  • Chony||

    It's okay because the right people are in charge.

  • robc||

    Is there a more dictatorial power a head of state could claim than post-acquittal detention?

  • ||

    Detention without trial or habeas corpus is pretty much up there. Less wishy-washy, more honest, but amounts to the same.

    Dictatorial powers seem fairly inevitable in war, which, fundamentally, is killing people without benefit of trial or anything else. I'd rather find ways to keep war limited, separate, and in its own box.

  • The Gobbler||

    We need to keep war safe, legal and rare.

  • ||

    Heh, nice formulation. Embarrassed I didn't think of that one.

  • ||

    +10

  • ||

    Dictatorial powers seem fairly inevitable in war, which, fundamentally, is killing people on the battlefield without benefit of trial or anything else.

    ftfy. America is not a battlefield.

  • ||

    ...unless you count our urban centers.

  • Pip||

    Mandated health insurance purchases?

  • ||

    If we're going to keep them imprisoned anyway, I'd rather have someone that just admits that that's the plan, rather than an absurd "heads I win, tails you lose" strategy of civilian trials "when we can" that are then ignored when they don't get the right result.

    I think that plenty of liberals were sincere enough in their civil liberties complaints, but a sizable portion of swing voters only really cared about appearances. Now that Gitmo is safely out of the news, who cares if they're held there?

  • Obama is the New World Order||

  • ||

    Hey, it's Henry Kissenger!

  • ¢||

    What I've heard from conservatives (read: ratbaggers) is that because these kinds of trials are to some degree inevitably show trials, they should be kept out of the non-military courts that the rest of us have to use, so their precedents don't become everyone's.

    What I've heard from Greenwald is "THE JEWS ARE IN MY TEETH!"

  • The ratbaggers have a point.||

  • RyanXXX||

    Greenwald the Jew, you mean?

    Idiot.

  • ||

    What's the multiplier effect on the economy from government funds spent on show trials?

    3x? 4x?

  • Jerry||

    Hasn't Greenwald got the memo, "enemy combatants" is outlawed under Obamaspeak.

  • J_L_B||

    [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.

    No need for a trial, just do what's in bold above. Hasn't that been customary for the past two centuries?

  • ||

    If we are going to hold him as a Prisoner of War, then why have a trial? AFAIK the only reason we have tried POWs is during the war in order for spying, or after the end of hostilities, for war crimes.

    The legitimate objection to the Bush administration policies was that there's no definition of "enemy combatant" and therefore anyone could be held prisoner indefinitely. A better way to address that problem would be to define "enemy combatant" and hold tribunals, in public not in secret, to determine and clarify who is and who isn't an enemy combatant, and therefore who is and who isn't a legitimate POW.

    I understand that this isn't as simple as it sounds, but I think that we let the perfect be the enemy of the good, here. Now, we have the worst of both civilian and military "justice", with a good-sized helping of dictatorship.

  • ||

    Bad edit: "in order for spying" should jsut be "for spying"

  • Fiscal Meth||

    "A better way to address that problem would be to define 'enemy combatant'..."

    You're right. And You can't define "enemy combatant" without first defining "enemy"(terror is not an enemy but a tactic) and declaring war against that enemy.

  • ||

    Agreed.

    How about the Global War On The Violent Fundamentalist Religious Sect That Must Not Be Named?

  • ||

    That's still a war on an idea.

    And if you're referring to Islam in general as a violent religious sect, you're a douchefunnel.

  • ||

    And once again, Tulpa, you need to reach for a dictionary. "Sect". Look it up.

  • Fiscal Meth||

    Not an idea, an ideology. It's proper for America to declare war on any and all countries that promote, protect and/or fund a specific ideology and its militant organizations whose success necessarily means lots of dead Americans. That's much different than declaring war on one of the tactics those groups use in pursuit of their ideological goals.

  • ||

    Hostilities with the Taliban government of Afghanistan have already ceased. We released German POWs from WW2 as soon as the Nazi government was removed from power throughout Germany; we didn't hold them until the last Nazi who fled to Argentina had been captured.

    Treating the decentralized network of cells that is al-Qaeda like a state for POW purposes is Orwellian to the max. There's no clear circumstance under which one could say that hostilities between us and al-Qaeda have ceased, especially when the US pins the al-Qaeda moniker on every Muslim terrorist group that pops up.

  • ||

    This treatment of imprisoned Al Queda members is terribly unfair said the Somali Pirate with the hole in his head.

  • J_L_B||

    Hostilities with the Taliban government of Afghanistan have already ceased.

    I would beg to differ, they continute to launch attacks against us almost daily.

    We released German POWs from WW2 as soon as the Nazi government was removed from power throughout Germany; we didn't hold them until the last Nazi who fled to Argentina had been captured.

    This wasn't completely due international law and custom, it also stemmed from us believing those that fled to Argentina were not going to regroup and attack, which is often the case with terrorists.

    Treating the decentralized network of cells that is al-Qaeda like a state for POW purposes is Orwellian to the max. There's no clear circumstance under which one could say that hostilities between us and al-Qaeda have ceased,

    We've previously applied that standard to decentralized groups such as the Barbary Pirates, but if their situation is unclear, then a new Geneva convention is needed to clarify the standards applicable to captured terrorists.

  • Pip||

    Why would anyone quote Glenn Greenwald?

  • ||

    Because he's considerably better than the leftists who "forgot" all their principles once their guy was in charge.

    My view was based on cynicism and my belief of what is inevitable in war, and trying to minimize that damage. People who had full-throated idealism in one situation shouldn't swallow it when their guy is in charge.

    Those other people are making a decent argument for the subtle "it's better for civil liberties when a Republican is in charge, because then the media actually cares" view. Hopefully gridlock and the reverse hypocrisy on civil liberties among Republicans will balance that out somewhat.

  • ||

    "My view was based on cynicism and my belief of what is inevitable in war, and trying to minimize that damage"

    You say that as if cynicism were a bad thing. I prefer to characterize it as the realists "reality based" view.

  • ||

    "My view was based on cynicism and my belief of what is inevitable in war, and trying to minimize that damage."

    I am with you, and so were the Founders. It's fair to say that the Constitution was based on that principle, except not only in war.

    I.e.: My view was based on human history and my belief of what is inevitable in government, and trying to minimize that damage. People who had full-throated idealism in one situation shouldn't swallow it when their guy is in charge.

  • ||

    Once you buy the fallacy that the US is currently at war, you've already surrendered to the statists. The current situation is never going to end, until every Muslim in the world holds hands with a US soldier and sings a song of love and harmony. Saying that certain government behavior is OK because "we're at war" means it's going to be OK forever.

  • ||

    Actually, it doesn't matter whether the US is "at war" or not. That argument is pointless.

    The US was most certainly a combatant in WW I -- AND the statists, even fascists by any reasonable definition, ran the show in the US at that time.

    Certain government behavior is not okay, whether or not we're "at war." Accepting that war makes this behavior okay is surrendering to the statists. It does not depend on whether we pretend to be at peace, pretend to be at war, or whatever -- and in the current world of decentralized and asymmetrical conflicts, it is as much a fallacy to say that we're at peace, as to say that we're at war.

  • ♥♥♥||

    Because he's absolutely correct in this case.

    Err I mean, fuck that guy. It doesn't matter that he makes a good point here, in the past I've disagreed with him so anything he could ever say is therefore null and void.

    Am I doing the ad hominem right?

  • Rrabbit||

    Because Greenwald actually provides detailed analysis. That is preferable
    over anybody who just takes some position without backing it up with any reasoning.

  • ||

    As I understand it, what was excluded in this case wasn't testimony obtained under "torture", it was the testimony of another witness who was identified under "torture". This is what is known as the "fruit of the poison tree" doctrine.

    I simply don't know if this doctrine would apply in military tribunals.

    And the whole effed-up mess shows that we are still operating under a category error: treating war crimes as no different from knocking over a liquor store, and/or treating a non-state actor as no different than a prisoner of war.

    These guys don't fit either category. They need a new category. I suspect for our troops in the field, especially after this verdict, the category to which future Ghailanis will be assigned is "dead".

  • Obama has learned that lesson||

    Take no prisoners.

  • The Gobbler||

    Drone on.

  • ||

    Is attacking an embassy an act of war in and of it's self? Did Clinton declare war on AQ when he was in office? Certainly not the Taliban.

  • ||

    Attacking an embassy is generally considered an act of war, IIANM.

    Given that an embassy is considered the territory of its owner-country, and not just a business office like a consulate, an attack on an embassy is the same as an attack on the homeland.

    The host country might even be considered one of the combatants if it is somehow determined they encouraged an attack by private actors or were even just negligent in providing adequate protection.

    However, attacks by private actors did not used to be considered acts of war, they were considered criminal acts.

  • ||

    That's where we do need to define "enemy combatant."

    "Private actor" doesn't really apply to a member of a large global organization, with its own paramilitary training facilities, a recognizable identity, etc., and that has declared war.

    AQ isn't a nation-state. But a member isn't a private actor, either.

    That's the dilemma that Bush didn't want to take the time to confront, and Obama wants to pretend isn't an issue. Neither approach is good for the future of a world that does contain organized terrorist groups that won't disappear if we pretend they're not there.

  • ||

    AQ isn't a global organization, doesn't have a recognizable identity, and hasn't declared war.

    Treating AQ as an "organization" (let alone a state!) is even dumber than treating the Tea Party as a political party. It's a moniker that we use to refer to the collection of many independently-acting small groups sharing little besides a strong dislike for us.

    Other than that, spot-on.

  • ||

    The use of a cellular structure doesn't change what Al Qaeda is, any more than spin-off subsidiaries changed what Enron was. I think you can see the problem if an enemy (however defined) can hire an MC firm to play with its organizational structure, then attack with impunity.

    WRT a declaration of war, maybe PBS is really a right-wing propaganda machine, but that's what they called it. http://www.pbs.org/newshour/te....._1998.html

  • ||

    ""Attacking an embassy is generally considered an act of war, IIANM.""

    Except when it's the Chinese embassy and it's us doing the attacking.

  • ||

    I would have to say attacking an embassy is an act of war. An embassy is U.S. soil.

    We haven't declared war on anyone since December 1941.

  • ||

    You forgot Bulgaria, Hungary, and Romania in 1942.

  • ||

    Did those bastards ever surrender to us?

  • Mo||

    How is the embassy bombing case treated differently than the OKC bombing? Is it ok to treat the OKC bombing as no different from knocking over a liquor store?

  • ||

    For that matter, the terrorists that attacked the WTC in '93 were tried and convicted in federal court.

  • 8||

    how did that work out?

  • ||

    Pretty good since the people that did it will rot in prison.

  • ||

    Really? KSM financed that effort. I'm thinking he went on to do something else but I'm drawing a blank..................

  • ||

    Well too bad they didn't catch him back then. That has nothing to do with the prosectution of those caught.

  • ||

    In both cases, it was a lot easier to perform law enforcement duties inside the US than in another country.

  • ||

    Because the FBI is theoretically able to use proper police procedure and investigatory powers when something occurs within our borders.

  • ||

    The essential feature of wars, from a legal perspective, is that they are fought between sovereigns.

    AQ and its Islamonutter ilk are not sovereigns. Ergo, they cannot engage in warfighting as that term is historically understood. Captured Islamonutters are not prisoners of war because there is no war being fought, legally speaking.

    That's why the whole "POW" thing is a category error.

  • ||

    ""The essential feature of wars, from a legal perspective, is that they are fought between sovereigns.""

    So how did they commit war crimes or warrant a war tribunal?

  • ||

    The term "war crimes" doesn't comfortably fit, I agree. Even though I keep using it.

    However, the military tribunals put together at Gitmo were pretty much a sui generis response to the need to due process these guys. Not sure that isn't the kind of approach we should be using.

    Keep in mind, the traditional approach to people engaging in warfighting activities without uniforms or the sanction of a sovereign is summary execution.

  • ||

    Warfighting? From a legal perspective, they can not engage in war since they are not soverigns.

  • ||

    the traditional approach to people engaging in warfighting activities without uniforms or the sanction of a sovereign is summary execution.

    This refers to people caught during combat. Not people who some corrupt Afghan warlord handed off to us.

  • GILMORE||

    re: RC = see my comment below. According to former AG Mukasey, tribunals would have allowed the 3rd party to testify.

  • Jay||

    I wonder if torture supporter and war monger Glenn Reynolds will link to this Hit & Run post.

    /Jay

  • More importantly....||

    Will Obama's Justice Dept. link to this post?

  • ||

    In fact, Reynolds has linked to this post.

  • ||

    I suspect for our troops in the field, especially after this verdict, the category to which future Ghailanis will be assigned is "dead".

    Blowing up "suspected terrorists" (and their friends and families remotely seems to support this hypothesis.

  • ||

    )

  • ♥♥♥||

    A+++++++ would read again.

  • ||

    Thanks for closing those parentheses. It would have bothered me otherwise.

  • ||

    All of the right-wing whinging about this mystifies me. Sure, the guy was convicted on "only" one count...which carries a sentence of 20 to life. And we all know what the sentence will be; regardless of what the judge says, the guy will never be let out.

    Fuck, why are they even calling for military tribunals? If their standard is absolutely no acquittals on any charge, then let's just stop pretending that any due process is involved.

  • Right-Wing||

    We'll whing if we feel like it. It's our party.

  • ||

    You're right. Well...except for the whinging part.

  • ||

    "which carries a sentence of 20 to life."

    Or ... time served with an apology from a sympathetic appeals panel.

    Or ... paroled after 7 for good behavior

    Or ... pardoned at midnight of the last day in office of some US president who was raised in the same religious tradition as a 'gesture of healing'.

  • ||

    Or ... Shanked in prison during week one.

  • ||

    There's generally no parole in the federal prison system.

  • ||

    Nothing like showing the world how our legal system works--if we cannot convict you according in our civilian courts, the USA will simply ignore the results and convict you anyway.

    But what a nice precedent for the left. In their drooling haste to put Cheney and Bush on trial we can see their desired outcome were such a hypothetical trial not deliver the intended results.

    Show trials--and you thought they were dead once the USSR went belly-up.

  • ||

    "The Left" put Bush and Cheney on trial? I would have thought that would have been big news and I would have heard about it before.

  • Scott66||

    "The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do."

    I wonder if the military tribunals would consider the EITs torture.

  • Hugh Akston||

    According to some of the internet tuff gais we've had around here in the past, the military considers them standard training techniques.

  • ||

    Yeah, those 'tuff gais' are just pansies. How hard can it be to land a plane on a moving target in the middle of the ocean? I did it on XBox!

  • ||

    When someone is found guilty of only one of 281 charges, people here usually ascribe that to an overzealous prosecutor throwing everything to the wall to get something to stick.

  • ||

    But, but, but ...

    Mooslum Terrierrits!

  • Hugh Akston||

    Politics in this country has strongly resembled a chimpanzee enclosure since sometime in late 2001.

  • ||

    Er, I think that's what us here are ascribing this to as well.

  • ||

    It depends what the charges are, not the amount.

  • Old Joe Stalin||

    Say what you will about show trials, they worked for me.

  • ||

    They also worked for the Allies after World War II.

  • Xenocles||

    I can't thread on my mobile, but to answer 1054's question the poisoned tree doctrine fully applies at courts-martial as well. No link, but I did take a class on this once FWIW.

  • GILMORE||

    According to former AG Mukasey's comments on the News Hour tonight, this..

    "" The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do.""

    I don't know if that's generally accurate or on-target in this specific case or not

    ...Is generally correct.

    However, there were some exceptions = Tribunals would not have barred testimony by *third parties* who could verify information 'related' or gleaned from coercive techniques. The distinction is sort of lost on me as well, but apparently there's a loophole that would not have put certain 'compelled' evidence in an 'completely inadmissible' box.

    I suppose the example was.... say they tortured the guy, and he names a collaborator. They subpoena said guy, and he willingly offers testimony to the same effect. His own testimony would not (necessarily) be dismissed simply because they only learned of the existence of the third party through coercive means. Apparently that was relevant to the case of Ghailani, where they had a 'witness' they wanted to bring, but whom was not admitted because his identity was only gleaned through coercive methods.

    Again, I'm not super-informed on the specifics, this was just something I picked up on the tube a minute ago, and this is just my paraphrase.

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