Foreign Policy

Obama's Show Trials

Why prosecute a terrorism suspect if life imprisonment is the only possible outcome?


In October a federal judge threw out a key witness against 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. The witness, who was identified through Ghailani's coerced statements, was supposed to testify that he sold the defendant the TNT used to blow up the embassy in Tanzania. But U.S. District Judge Lewis A. Kaplan concluded that the testimony was too closely tied to information the CIA had obtained from Ghailani while holding him at a secret prison where he says he was tortured.

Conservatives who think terrorism suspects should never receive civilian trials said the exclusion of this testimony showed they were right. So did civil libertarians who argue that the federal courts are perfectly capable of handling terrorism cases. But whether or not the system is working, Kaplan's ruling suggested it is ultimately irrelevant.

"It is appropriate to emphasize," Kaplan wrote, "that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his 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." Barring a formal surrender by Al Qaeda, these "hostilities" will continue indefinitely, so detention for their duration amounts to a life sentence—the same punishment Ghailani is apt to receive if he is found guilty. 

If Ghailani is convicted, in other words, 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 zero chance of regaining his freedom. So what exactly is the point of the trial?

In a New York Times op-ed piece published after Kaplan's ruling, Harvard law professor Jack Goldsmith, an assistant attorney general during the Bush administration, noted that "trials are perceived to be more legitimate than detention." But Goldsmith, who favors military detention of suspected terrorists, added that "a conviction in a trial publicly guaranteed not to result in the defendant's release will not be seen as a beacon of legitimacy."

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." Holder's coyness was not really necessary, because the administration already has publicly stated that it reserves the right to detain terrorism suspects who are acquitted.

"If you have the authority under the laws of war to detain someone," Pentagon General Counsel Jeh Johnson told the Senate Armed Services Committee in July 2009, "it is true irrespective of what happens on the prosecution side.…If there's an acquittal…we would have the ability to detain him."

One reason for nevertheless going through the motions of a trial, Goldsmith suggested, is the possibility of capital punishment. But the Justice Department is not seeking the death penalty in Ghailani's case, and in any event President Barack Obama claims he can kill suspected terrorists without permission from a court.

Under his policy of "targeted killings," Obama can authorize the summary execution of anyone he unilaterally identifies as a member or accomplice of Al Qaeda, including American citizens. Since this administration, like the last one, views the entire world as a battlefield in the war on terrorism, that means enemies of the state can be killed anywhere at any time—except, presumably, if they have been taken into custody and are being prosecuted in federal court.

Which suggests a third option for Ghailani, in addition to life imprisonment upon conviction and indefinite detention upon acquittal. The government could simply let him go—and then kill him. 

Senior Editor Jacob Sullum ( is a nationally syndicated columnist.

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    1. Thank you for reminding them that Obama has done nothing wrong. We at the government are the law, and therefore cannot break it.

      Morality does not apply to us. It is not wrong for us to take people and confine them for as long as we want without justification, it is only wrong if a non government employee attempts to do so.

      Thats why its kidnapping when you do it, and an arrest , detention, etc. when we do it.

      Jury trials put too much power in the hands of non government persons, a huge mistake.

  2. Caption Contest!

    “Here’s my birth certificate! Could we please focus on my actual faults now?”

    1. “Okay, let’s make this easy. Who didn’t have the lobster?”

    2. “Thought you guys might want to take a look at my Harvard Law Review articles.”

      1. “Wtf is this flimsy piece of shit? I can’t sign any legislation I can lift off of my desk. Biden, get your ass over here so I can smack the shit out of you with this flyer”

    3. “You know who else liked to sign things while people stood around applauding….”

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

    There’s a fierce moral urgency at work here. Its immoral to hold somebody indefinitely without trial.

    Much better to hold them indefinitely after they’ve been acquitted.

  4. Change we can believe in.

  5. I have a friend who is a constant reminder of why Republicans are not us, and never will be. He was outraged that Obama was holding this show trial. Not the fact that it’s a show trial, but the fact that we’re being so soft on terrorists like this.

    Of course, “So you think Obama should be allowed to hold anyone he wants as a terrorist forever without trial?” is a nice counterargument to have.

    1. This. However bad what Obama is doing is the conservatives are actually all over his shit for being too soft here…

      1. It’s not a matter of being soft, IMO, but of using civilian courts for military crimes. The indefinite detention after even a not-guilty verdict would set a hideous precedent, too, one that could be then used on us.

        No, these dirtbags need to be tried in a military court.

        1. What’s the military crime? Blowing up or destroying civilian property is a civilian crime. Taking up arms against an invading force isn’t a crime. If we were invaded, taking up arms to fight back is a right, not a crime. But I guess that depends on who wins. If China invaded and we took up arms and fought back and China won, I guess we would be war criminals too. But I don’t think we would get a civilian court in China either.

          1. Nor should we.

            Destroying private property is also a war crime if done within the context of a war, as is targeting non-combatants. And, as I’m sure you know, AQ declared war on the US several years prior to 9/11.

    2. yes, i do. what the f’ do you know about the prosecution of terrorists, terrorism, espionage, war, combat, any of it? from your comfortable little house, you portend to tell the world of military experts how to conduct this effort? we are being way too soft on terrorists, and only clueless progressives think otherwise.

  6. Turgid itch and the perfume of death
    On a whispering south wind
    A smell of abyss and of nothingness
    Dark Angel of the wanderers howls through the loft
    With sick smelling sleep
    Morning dream of a lost monkey
    Born and muffled under old whimsies
    With rose leaves in closed jars
    Fear and the monkey
    Sour taste of green fruit in the dawn
    The air milky and spiced with the trade winds
    White flesh was showing
    His jeans were so old
    Leg shadows by the sea
    Morning light
    On the sky light of a little shop
    On the odor of cheap wine in the sailors’ quarter
    On the fountain sobbing in the police courtyards
    On the statue of moldy stone
    On the little boy whistling to stray dogs.
    Wanderers cling to their fading home
    A lost train whistle wan and muffled
    In the loft night taste of water
    Morning light on milky flesh
    Turgid itch ghost hand
    Sad as the death of monkeys
    Thy father a falling star
    Crystal bone into thin air
    Night sky
    Dispersal and emptiness.

  7. I have to admit, if there is anywhere I’m disappointed in Obama – feel like a sucker falling for the Hope – it’s this legal wasteland of the War on Terror.

    I really thought with his background, rhetoric, and the unique nature of modern Executive power to shape the evolution of it, Obama would be somewhat of an effective antidote to the Shrub and Darth Vader.

    I was totally wrong. Its not just the Darkness continuing unabated legally, but in everything from closing Gitmo to the NYC show-trial disaster there is management incompetence and second-guessing everywhere. Its not Darth Vader anymore, now its just his intern.


    1. I honestly don’t mean to pile on here, but I am puzzled as to how so many people thought they were getting something “different” than what they ultimately got with Obama. His background matches perfeclty with his actions so far (IMO). His rhetoric has always been meaningless (not a unique thing amongst politicians). So no, I’m not surprised at what he is right now, which is an utter failure.

      This about sums him up:…..nture.html

      1. It’s all about branding. People fall for it all the time.

        I don’t think Bush fans and Obama fans in 2008 would have believed Obama would be like Bush.

      2. I had made mistake of calculating he’d both serve his core political markets, and that – what with his ‘Constitutional Law Professor’ shtick – he actually had read the thing.

      3. obama is, and always was, a joke. an orator with the right pigment for the moment, armed with a teleprompter and a suspect reference to harvard. this “smartest guy in the room” rap is just absurd, started by acolytes that wouldn’t know smart if it ran them over.

  8. “Which suggests a third option for Ghailani, in addition to life imprisonment upon conviction and indefinite detention upon acquittal. The government could simply let him go?and then kill him.”

    Didn’t we try something like that with bin Laden?

  9. His background matches perfeclty with his actions so far (IMO).

    Precisely. Exactly what in his history led anyone to believe his rhetoric?

    1. It’s to his shame that he was either so uninformed about these war criminals and their disposition or just simply demagogued the issue. Either way, it reflects badly on Obama and his administration.

      1. Questions:

        1. Can non-state conglomerations of people be said to wage war?

        2. Can a single person, then, be said to wage war?

        3. What logical impediment would there be to charging someone who punches a federal marshal as a war criminal? Intent? If the intent was to overthrow the state, he is a war criminal, and may be held indefinitely? And if it were a personal grudge, he would be a regular criminal and allowed a standard trial?

        1. One person in NYC with a baseball bat is a problem, but one person with a W87 on a little red wagon going down the street in NYC is a world power no matter the political condition of the individual.

          Its not the measure of people, its the measure of the entropy they can make.

          1. It seems that you are saying that one person alone can be said to wage war, and that whether or not one person is seen as a regular criminal or a war criminal is measured by the force that that person uses (or could potentially use). What is that level of force? Who determines it? By what procedure is that determined?

            Many prisoners of war have nothing more than firearms when they are captured. If one person alone can wage war, why can’t the United States declare that anyone using a gun during a crime is in fact a war criminal and detained indefinitely?

            1. I’m not advocating one perception or another; you could equally construct an absurd one-person nation as a legal entity and explore laws of war relative to that polity.

              I’m just saying its a semantic term – war vs. crime. If anything, war is the legalized criminality of states to kill and appropriate things from people as an institutional imperative.

              Its like that with belief systems. When does it stop being a cult and start being a “faith” or “religion” that compels peculiar legal exceptions and accommodation of its crazy ideas from wider society? You look at the belief systems of Mormons, Scientologists, and Catholics: When taken literally, they’re all batshit-crazy drug trips. Yet each are accorded different tolerance (and credibility) based on how old they are, how big their membership roll is, and how much money they have.

              Same thing with “crime” and “war.” The “illegality” of one versus the “legitimacy” of the other is just a game of numbers. But when the criminal can rack up numbers of victims that are on the scale of war, it blurs that distinction for people and society outside of their control (can’t ban membership in a body-count). Which is why we get shit like Homeland Security to criminal acts that are on the scale of a war.

  10. OT, but,

    (Rather hilarious )Proof that libertarians are a bunch of sick-fuck aspberger case nerds:…..sonal-sex/

    How you jagaloons can still stick with this philosophy in light of how frequently this sort of thing comes up in it is beyond me. I got over it, you idiots should too; it’s time to grow up

  11. OT but,

    more proof that libertarians are a bunch of sick-fuck aspberger case nerds…..sonal-sex/

    How you jagaloons manage to stick to this philosophy when such fucked up shit comes up so regularly is beyond me. I got over it, and you should too; time to grow up.

  12. It used to be that the shining example of Big Government, doing something right, was our military – no more. The military has become a playground for Liberals to try social experiments; both to our troops and the enemy.

    Liberals are pacifists and hate the military – that goes for our fearless leader Obama too.

    How long before we have to have the enemy combatants acknowledge their Miranda rights before we blow their heads off? Just you wait – pacifists will do this at some point.

    In the mean time the pacifists will drag the enemy combatant back the US soil, award him US constitutional rights, pay for the finest lawyers to defend him, and then try him in Traffic Court.

    Libs can’t be put in charge of ANY national security – they are pacifists at heart just like Dear Leader Obama.

    1. Word.

      1. Even so, progressives become sexually aroused when they watch ME run up the death toll.

    2. Used to be our military was “good”? Nowt since we did away with the citizen military. Since then it has become nothing more than another tool for our “imperial elite oligarchy” to beat up on the world for their own power and privilege.

      Of course, like in all empires, the “mercenary military” is now applying the same techniques previously reserved for foreigners to the home population. Not for nothing does the Pentagon have more resources for producing propaganda for Americans than the rest of the federal government combined. Your “trust” in the most pervasive part of our “big government” is touching.

      Homeland Security is a good example. Go read about the beginnings of the Bulag in the USSR – we now have the same phenomenon. Curiously enough, the Gulag was initially founded and managed by jews – who killed over 10 million people in the USSR. Now why is Homeland Security filled with so many zionists whose first loyalty to the US is doubtful?

  13. We can all agree that Obama has totally mishandled the handling of captured terrorists. They should have been give short sweet military trials and incarcerated or executed at Guantanamo bay. What else is new. If Obama were not an extreme left wing ideological incompetent we wouldn’t be stuck with 9.8% UNEMPLOYMENT! Yet we are!

  14. American torture, kidnapping,and murder have become so commonplace that sarcasm no longer has a place.
    This is real folks and its not likely to be corrected. American aggression shows no signs of abating. This means the only safety and freedom that we have is the result of anonymity in a crowd, not the rule of law.

  15. Obama is getting worse.

  16. Time to put the bong down Jimmy. You’re paranoid and delusional.

  17. How about mbt kisumu sandals this one: there are X driving deaths a year- what % of driving deaths (or serious injuries) involve alcohol, or other intoxicating substances? kisumu 2 People are pretty darn good drivers when they are not impaired.

  18. I have a friend who is a constant reminder of why Republicans are not us, and never will be. He was outraged that Obama was holding this show trial. Not the fact that it’s a show trial, but the fact that we’re being so soft on terrorists like this. ???? ????? ??? ???????
    Of course, “So you think Obama should be allowed to hold anyone he wants as a terrorist forever without trial?” is a nice counterargument to have.

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