Terrorism

The Show Trial of Ahmed Khalfan Ghailani

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Yesterday the judge in the trial of Ahmed Khalfan Ghailani, the former Guantanamo inmate who is accused of participating in the 1998 bombings of the U.S. embassies in Kenya and Tanzania, ruled that federal prosecutors may not use a witness who was identified through Ghailani's coerced statements. The government says the witness was prepared to testify that he sold Ghailani the TNT used to blow up the embassy in Tanzania. U.S. District Judge Lewis A. Kaplan concluded that the testimony was too closely tied to information the CIA obtained from Ghailani while holding him at a secret prison where he says he was tortured. Civil libertarians who argue that the federal courts are perfectly capable of handling terrorism cases and conservatives who think terrorism suspects should never receive civilian trials both say the exclusion of this testimony shows they're right. But whether or not the system is working, Kaplan's ruling suggests it is ultimately irrelevant:

The judge said he felt it was appropriate to emphasize that the trial was still proceeding, and that if Mr. Ghailani were convicted he faced the possibility of life imprisonment.

He added that Mr. Ghailani's status of "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 other words, if Ghailani is convicted, he will be imprisoned for life, and the same thing will happen if he is acquitted. Even with the benefit of the Fifth Amendment's ban on coerced self-incrimination and the exclusionary rule, Ghailani has exactly zero chance of ever regaining his freedom. So what exactly is the point of the trial?

Asked whether Ghailani will be returned to military custody if his trial does not turn out the way the government wants, Attorney General Eric Holder dodged the question, saying, "We intend to proceed with this trial." But there is no need to be coy. As I noted more than a year ago, detaining terrorism suspects after they're acquitted is the Obama administration's publicly declared policy.

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  1. So what exactly is the point of the trial?

    To show that we are A Nation That Respects The Rule Of Law.

    1. So what exactly is the point of the trial?

      Don’t look a teachable moment in the mouth.

  2. Uh, I really need to keep tht quote from Alice in wonderland handy –

    When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

  3. Eric, you beat me to it.

  4. They’ll claim since he was captured outside of US jurisdiction in a “war zone,” that he does not enjoy equal protection under the law.

    This administration is so much worse than the last one regarding the WoT.

    1. “”They’ll claim since he was captured outside of US jurisdiction in a “war zone,” that he does not enjoy equal protection under the law.””

      Didn’t the last admin make the same claim? I’m not seeing how Obama is any worse, or better than the last admin.

    2. This administration is so much worse than indistinguishable from the last one regarding the WoT.

      1. The advantage of the last administration is that it did not drag the Article III courts through the muck in these show trials, putting important civil liberties (e.g. suppression of coerced testimony) at risk of dilution just to score cheap political points.

        For better or worse Bush was willing to be the bad guy for the right reason, Obama wants to have it both ways, not out of principle but out of ego.

        1. Yeah, I should have been more clear. Bush said all along he was going to do this because he thought it was the right thing to do. Obama vehemently condemned these trials on the campaign trail and vowed to reinstate civil liberties that were being eroded. He not only didn’t do this, he went completely further down the road Bush started on.

          That is why this admin is worse.

          1. How has Obama gone further down the road?

            Once SCOTUS ruled gitmo had access to federal courts, then Article III courts were in play. That’s not Obama’s decision, and Bush would have had to gone that route if he was allowed a third term.

            I have yet to see Obama try to hide a US citizen, caputred on US soil, away from federal courts.

            1. Fair point, though its not like he has the opportunity now. And he is reportedly trying to blow a US citizen up sans trial.

              1. “”And he is reportedly trying to blow a US citizen up sans trial.”””

                True, but I doubt Bush would object, and he would do the same if he had the opportunity. I don’t see one better than the other.

                1. Now you’re mincing words, Vic. Bush had the chance to do it and he didn’t.

                  Here’s a good intro to this for you:

                  Even leftists rip Obama over this leap way beyond what Bush ever did. Are you just so willing to defend Obama that you’ll try to pretend this isn’t going past what Bush did?

                  1. “””After the Sept. 11, 2001, attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said,” the Post reported””

                    http://www.infowars.com/after-…..ist-links/

                    1. Well, Greenwald contradicted the statement that GWB approved it here:

                      Article contradicting Dana Priest’s assertions 2 months later

                      Quote from the piece: At the time, The Washington Post’s Dana Priest had noted deep in a long article that Obama had continued Bush’s policy (which Bush never actually implemented) of having the Joint Chiefs of Staff compile “hit lists” of Americans, and Priest suggested that the American-born Islamic cleric Anwar al-Awlaki was on that list. The following week, Obama’s Director of National Intelligence, Adm. Dennis Blair, acknowledged in Congressional testimony that the administration reserves the “right” to carry out such assassinations.

                      So, Priest claimed something had allegedly happened under Bush because of anonymous sources and what Greenwald said. Greenwald contradicts this with named sources and Congressional testimony. I think I’ll go with the latter, what with it being under oath and all.

                    2. From your own link

                      :In November 2002, a CIA missile strike killed six al-Qaeda operatives driving through the desert. The target was Abu Ali al-Harithi, organizer of the 2000 attack on the USS Cole. Killed with him was a U.S. citizen, Kamal Derwish, who the CIA knew was in the car.

                      Word that the CIA had purposefully killed Derwish drew attention to the unconventional nature of the new conflict and to the secret legal deliberations over whether killing a U.S. citizen was legal and ethical.

                      After the Sept. 11 attacks, Bush gave the CIA, and later the military, authority to kill U.S. citizens abroad if strong evidence existed that an American was involved in organizing or carrying out terrorist actions against the United States or U.S. interests, military and intelligence officials said. The evidence has to meet a certain, defined threshold. The person, for instance, has to pose “a continuing and imminent threat to U.S. persons and interests,” said one former intelligence official.

                      The Obama administration has adopted the same stance. If a U.S. citizen joins al-Qaeda, “it doesn’t really change anything from the standpoint of whether we can target them,” a senior administration official said. “They are then part of the enemy.” “

                    3. Maybe that link didn’t go where it was suppose to.

                    4. No, it went where it was supposed to go. It also says that Bush never implemented the program.

                      From my link: Just to get a sense for how extreme this behavior is, consider — as the NYT reported — that not even George Bush targeted American citizens for this type of extra-judicial killing (though a 2002 drone attack in Yemen did result in the death of an American citizen).

                      Where did your quotes come from, because they are nowhere in the Salon story I linked to.

                      Even the NYT says the only Bush admin they talked to knew of no American ever targeted by an administration. None of them ever named names if targets under oath, and they were questioned plenty. I think you’re cherry-picking here, but I don’t even know where you’re cherry-picking from. Your own ass, perhaps?

                    5. I got them from your link. The link took me here

                      http://www.salon.com/news/opin…..ssinations

                    6. Besides, do you think the Bush admin would be honest about it? The guy wouldn’t tell the truth about datamining.

                    7. Besides, do you think the Bush admin would be honest about it? The guy wouldn’t tell the truth about datamining.

                    8. that quote is nowhere in the story. Nowhere. Either you are mistakenly quoting from another link or you are just making this shit up.

                      I’m willing to admit when I’m wrong, but where in the fuck is that quote in the story I linked?

                      Also, the “Do you think Bush would be honest about it” is a strawman. He had plenty of people in his admin testify under oath about the potential for this and not a single one said a the program was implemented. For him and his admin to lie to that degree would have been a stretch, especially as Scooter Libby had just been sent to jail for lying.

              2. Beat me to it. I can’t remember if Bush ever issued a death sentence on an American citizen sans trial on national TV like the Obama admin has been doing.

            2. Fight! fight! fight! fight!

  5. Well, if he were convicted of a felony, he wouldn’t be able to vote in most states, or own a gun. Now, he’s free to enjoy both of those rights!

    1. In quite a few states, convicted felons get to vote multiple times.

  6. Show trial is worse than no trial.

    1. What Pro L said.

      Its worse to be imprisoned after being acquitted, than to be imprisoned without a trial.

      1. “”Its worse to be imprisoned after being acquitted, than to be imprisoned without a trial.””

        If the end result is infinate imprisonment, what difference does it make to the prisoner?

        1. Actually, if convicted, he will be sent to prison where he will surely be sent to solitary confinement for life. If acquitted, he will be held as an enemy combatant and would likely end up in Gitmo where he’d be able to at least have someinteraction with his Muslim brethren.

          I understand the point about being imprisoned after acquittal sucking pretty bad, but that result would be preferable to a 6×6 with little or no human interaction.

          1. oops, forgot *standard libertarian disclaimer for above post

    2. Doesn’t show trial assume the verdict is in before the trial? I think that’s different than ignoring the outcome of a trial. I don’t think this issue goes to the trial per se, but to the willingness to accept the verdict if it goes against the government’s wishes.

      1. The results are predetermined, just not the “legal” justification. I’ve got problems with that. Try or don’t try.

        1. Do or do not. There is no try!

          1. I was thinking of reversing that quote, but I thought it made no sense.

            1. !try no is There .not do or Do

              You’re right. It doesn’t make much sense.

        2. “”The results are predetermined, just not the “legal” justification. “”

          For a show trial, the result of the trial would need to be predetermined.

          1. You know who else had show trials for people whose religions they didn’t like?

      2. When they’ve announced that no matter what goes down at the trial you’re gonna spend the rest of your life in a cage, it’s a show trial, yeah.

        Kafka had nothing on the 21st century.

        1. “”When they’ve announced that no matter what goes down at the trial you’re gonna spend the rest of your life in a cage, it’s a show trial, yeah.””

          What other show trials have resulted in imprisonment after an aquittal?

          1. good point. We don’t even know how to do a show trial right. If you are gonna have a show trial with a predetermined outcome of life in prison, you should at least have the competence to guarantee the guilty verdict like most nation-states.

            1. “”you should at least have the competence to guarantee the guilty verdict like most nation-states.””

              And if that’s what’s going on, I would call it a show trial.

          2. Only ours, Vic. It’s American Exceptionalism at work yet again.

  7. Remind me again, what is the difference between “enemy combatant” and “enemy of the state” and POW?

  8. Mr. Ghailani’s status of “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.”

    Doesn’t this make the most sense, he is to be held until his side defeats or surrenders to us? Hasn’t that been the custom in warfare since Europe, the Middle East, and North Africa was ruled by guys with the title Caesar?

    1. It’s also tradition that you don’t try enemy prisoners of war for murder. You just hold them. They need to pick one and go with it.

  9. If the end result is infinate imprisonment, what difference does it make to the prisoner?

    None, but its more damaging to society.

    Doesn’t this make the most sense, he is to be held until his side defeats or surrenders to us?

    Then why hold a trial?

    1. I agree completely with not holding a trial. Hand him a Koran, a deck of cards, his meal schedule, and a newspaper to keep himself busy, and let him know you’ll inform him when his buddies surrender.

      1. “Mr. Ghailani’s status of ‘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 other words, if Ghailani is convicted, he will be **imprisoned for life, and the same thing will happen if he is acquitted**.”

        Sullum assumes that these conflicts will last as long as a life sentence. Not a bad assumption considering this president’s attitude toward a U.S. victory(that it will not and shouldn’t be the outcome) and the previous several presidents’ incompetence and confusion about war. On the other hand, if the U.S. military identified the enemy and fought to win, the poor terrorist’s detention would only be a couple years.

        1. “”On the other hand, if the U.S. military identified the enemy and fought to win, the poor terrorist’s detention would only be a couple years.””

          I agree with that statement, but it’s really irrelevent. The WoT isn’t meant to be won. It’s not as if any the surveillence technology placed for the purpose the war, or any legislation will be withdrawn.

          Also consider the fact that the Korean War isn’t over.

          1. It takes a while. World War I just ended, after all.

          2. “The WoT isn’t meant to be won.”

            I agree. That’s what I meant by “identify” the enemy instead of fighting a war against a tactic. Obama has this problem plus he seems to think we would come off as arrogant if we won. Even though he too has failed to identify an enemy to beat. He’s happy to just keep sending more troops over to die in the hunt for terror.

        2. On the other hand, if the U.S. military identified the enemy and fought to win, the poor terrorist’s detention would only be a couple years.

          I highly doubt that. These guys will be fighting us until the last jihadist is blown up by himself of a drone; to surrender to the infidel is an affront to Allah.

          1. Naah, as soon as they realize that Allah is getting his ass kicked and that Allah magic is nowhere to be found when America is not making concessions and apologizing for its strength, the cause will be lost.

      2. Then shouldn’t we also afford him the protections of the Geneva Convention, J_L_B? Or do we only honor the parts of the “enemy combatant” provision that suit us?

        1. Enemy combatant is a different status under the Conventions than POW, remember? At least that was the Bush administration argument, and I can’t see the Obama administration refuting it. Enemy combatants are not afforded rights under the Conventions.

          1. I know, and there is the problem. They aren’t granted POW rights and they aren’t given due process under our criminal justice system. Are they in some sort of legal limbo here, because 9/11 was a long fucking time ago for their status not to have been resolved.

            1. Our government doesn’t want it resolved either. It affords them the ability to grey it up, so to speak.

              Abiguity favors the overlord.

              1. Well, we certainly agree on that.

                Friends? [hands peace pipe to Vic]

    2. “”None, but its more damaging to society.””

      How is it more damaging to society than indefinate detentions without trial?

  10. “As it will be in the future, it was at the birth of Man
    There are only four things certain since Social Progress began.
    That the Dog returns to his Vomit and the Sow returns to her Mire,
    And the burnt Fool’s bandaged finger goes wabbling back to the Fire;

    And that after this is accomplished, and the brave new world begins
    When all men are paid for existing and no man must pay for his sins,
    As surely as Water will wet us, as surely as Fire will burn,
    The Gods of the Copybook Headings with terror and slaughter return! ”

    http://www.kipling.org.uk/poems_copybook.htm

    1. Haven’t seen that in a while. Thanks for bringing it back to me.

  11. more damaging to society than indefinate detentions without trial?

  12. And the burnt Fool’s bandaged finger goes wabbling back to the Fire;

    And that after this is accomplished, and the brave new world begins
    http://www.lovejerseys.com/nfl-jersey-c-65.html

  13. In principle, is it legal to try an enemy combatant for war crimes before the conflict ends? I believe most high-profile war crimes prosecutions occur after the end of hostilities (e.g. Nuremburg trials), but is that just convention or is it a formal part of international law?

    Of course, it would have to be an actual war crime, the fact that the enemy prisoner shot at your soldiers wouldn’t qualify. But in this case they seem to be charging the guy with an actual war crime, since the US embassies were not in a war zone and are not military targets at any rate.

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