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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

The verdict in the trial of Ahmed Ghailani, who was acquitted of 284 counts of murder and convicted on but one count of conspiracy to destroy property, is the direct result of trying the man charged with the 1998 U.S. embassy bombings in our civilian court system and not in a military commission. The trial also provided a legal roadmap for future detainees to escape entirely, or like Ghailani, to severely limit the scope of conviction should the Department of Justice attempt to continue with this misguided policy.

The prosecution’s major problem in Ghailani’s trial was that it was prohibited from using its star witness, Hussein Abebe, who would have testified that Ghailani bought explosives from him and that the purchase was made on the black market. Such evidence would have permitted the government to argue that Ghailani knew what he was doing was illegal, otherwise why would he be surreptitious in buying the TNT. Without Abebe, the defense argued that Ghailani was but a dupe, unaware the explosives would be used for an illicit purpose.

The fate of the absent star witness was sealed the minute the Department of Justice decided to put the case into our regular criminal process. For over two centuries American courts, under the umbrella of the U.S. Constitution, have crafted procedural protections for criminal defendants. One longstanding policy, not used in many legal systems, is that if the government violates a person’s rights during the investigation, the government is punished, not the individual official, but the government’s case. “If the constable blunders, the criminal goes free,” is the oft quoted adage about the exclusionary rule, which suppresses any evidence a court finds was acquired unconstitutionally.

No Miranda rights given, defendant’s confession is suppressed. But our courts go further than just suppressing evidence acquired directly from a constitutional blunder. They also suppress evidence gained indirectly. If during that same confession the subject provides information that leads to other evidence, no matter how reliable or relevant, that evidence is also suppressed. The doctrine is called the “fruit of the poisonous tree.” The government should not gain the fruit from something it has done in violation of constitutional rules is the rationale. Ghailani hit that evidentiary jackpot.

Ghailani claimed he was “coerced” into making a confession, and because the CIA learned of Abebe during this confession, not only should his own confession be suppressed but also Abebe’s testimony. For the enlightenment of MSNBC and Fox’s Judge Napolitano: a coerced confession is not torture. Not only are they much different factually, but also legally. Coercion usually means sleep deprivation, uncomfortable temperature conditions, or lengthy interrogations. Torture is defined by statute and involves “severe pain or suffering, whether physical or mental.” Think tearing off fingernails or threatening to tear off fingernails. No United States court has ever found that waterboarding was torture. But Ghailani did not even claim he was waterboarded, only coerced.

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.

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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