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Ghailani Trial Provides Road Map to Victory for Future Terror Detainees

Claim "coercion" and the U.S. government will not fight the claim, lest they be forced to out a covert officer during the trial.

by
Victoria Toensing

Bio

November 20, 2010 - 12:00 am
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Military commission rules do not preclude coerced confessions: “Confessions allegedly elicited through coercion or compulsory self-incrimination that are otherwise admissible are not to be excluded at trial unless their admission violates [the torture statute].” “Evidence derived from impermissible interrogation methods is not barred.”

Thus, if Ghailani had been in the military commission tribunal, Abebe’s testimony could have been admitted. But in our civilian court system, the prosecutor had to answer to the court for the CIA’s interrogation techniques. During the pre-trial hearing in Ghailani’s case, the government did not put on any evidence to refute that the confession was coerced. Judge Lewis Kaplan, a distinguished jurist, asked the government: “[A]re you asking me to assume for the purposes of deciding the motion that everything Ghailani said from the minute he arrives in CIA custody till the minute he gets to Guantanamo … is coerced?” “Yes, Judge, yes,” was the reply.

As a micro tactic we should not fault the government for its decision not to proffer evidence challenging the claim of coercion. It could well be it did not want to expose the CIA officers to public scrutiny or even public identification, which could end a covert career. But as a macro tactic it was a disaster. There is now a legal roadmap for civilian detainee trials. Every future detainee and his lawyer now know all they have to do is claim there was coercion, and the government will not present evidence to refute the claim. That means no confession or confessional fruits for detainee trials in civilian courts.

Ghailani’s trial also exposes the perverted nature of our detainee policy. If a person wants to attack us and complies with all the rules of war, e.g., he wears a uniform and only attacks military targets, he will be tried in a military tribunal. But if he comes by stealth disguised as a civilian to make it easier to kill American civilians, we give him all the protections of our constitutional system.

The ultimate irony is this: Ghailani’s trial was but a farce. The U.S. government has maintained that if he were acquitted of all charges, it could keep him in custody. As Judge Kaplan observed, the detention would be “as an ‘enemy combatant’ … as something akin to a prisoner of war until hostilities between the United States and al-Qaeda and the Taliban end.” In other words, indefinitely.

Let us stop the feel-good pretense. We all know we have a criminal process unsurpassed in fairness by any other country. For those who question that premise, ignore them. Our military commission system provides due process, but based on rules intended for warfare, not for bank robbers and embezzlers. We are at war — let’s act like it, Mr. President.

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Victoria Toensing, a Washington, D.C. lawyer, was Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice and Chief Counsel for the Senate Select Committee on Intelligence.
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