Ghailani Trial Provides Road Map to Victory for Future Terror Detainees
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.
I do not want us to be “fair.” I want us to win the ‘overseas contingency operations” with whatever means necessary.
Define the enemy.
Find him/her.
Kill him/her.
Why are the Muslim terrorists protected species? It’s us, the Americans, that are at risk of becoming extinct.
What this says REALLY is that the federal justice system does not work. It does not provide justice.
Better tell the exNPR lefty Juan .He was arguing on Fox that the laws of confession under coercion are NOT permitted in military court.He won the argument on that point which turns out to be false. This is the lefts view everywhere.Get OReilly to state the truth.
With all due respect to Victoria who is a lawyer too, has any one in the press bothered to ask how much it costs us to do a trial in the USA say New York City versus doing a tribunal at Gitmo? Of course not! However that is one reason we are $100 trillion in debt and counting.
Most likely our president for life emperor Obama and his buddy Holder wanted to creat a “no lawyer left behind” policy towards terrorists and maximize the time, inconvenience, threat potential, court costs, juror costs, hotel costs, and legal fees of the process in order to stimulate the domestic economy.
These scum bag terrorists and their respective supporters living in caves throughout the world must be getting a big yuk over this whole debacle.
Meanwhile the clock keeps ticking, the bills keep coming in, and the American taxpayer gets hosed once again.
Ms Toensing hopefully will be brought on board to represent the majority in the new Congress. She has always been an articulate and forceful advocate in the defense of common sense and real Constitutional law (as opposed to Feel Good Living Constitution Modification).
That said, everything she has articulated the crux of the arguments against the use of our perverted court system and in favor of Military Tribunals, at least until the left manages to woosify them as well. At that point, only battlefield summary executions and/or the use of foreign surrogates will be left to keep us safe. Holder and his band of criminals are no more effective than the TSA at protecting us.
I found it interesting to read in this article that a technique like sleep deprivation is counted only as coercion and is thus deemed acceptable for military tribunals. Did you know that sleep deprivation was the primary technique used by Stalin’s minions to obtain confessions in the Soviet Union?
Solzhenitsyn himself was a victim of sleep deprivation. He freely admits that no one ever laid a hand on him: he was simply kept from sleeping. That was enough to get him to confess to all of the conspiracies concocted by his interrogators, no matter how ridiculous. He said that this was the most widely used interrogation method of them all throughout the Soviet Union, basing this on close on over 200 in-depth interviews of fellow survivors of the Gulag. That means that literally hundreds of thousands, if not millions, of Soviet citizens confessed to the most preposterous of the conspiracies invented by their interrogators on the basis of that one technique alone. Given that the number of genuine conspiracies found by these interrogators was very close to nil, that means that all the rest were simply people who had been coerced to confess simply by means of sleep deprivation.
We in the West have difficulty understanding just how difficult it is for both the mind and the body to be deprived of sleep. I’m not talking about one sleepless night when a noisy neighbor keeps you awake with a loud party. I’m talking about being kept awake for day after day after day while being held in a brightly lit area in a position that doesn’t allow you to stand up straight or lie down and where someone comes along every few minutes to prod you or throw water on you or shout at you if you appear to be dosing off. That is something few of us have ever experienced so it is hard for us to imagine. But the accounts that we have in Solzehnitsyn and other sources indicate that this is an extremely powerful technique that makes people say anything, no matter how false, just to be able to get some uninterrupted sleep.
I want to emphasize that I am not pleading for leniency for the vile individuals who work for Al Qaida, the Taliban, or their affiliates. They are appalling creatures who show us no mercy and I am inclined to show very little to them either. But if sleep deprivation and other coercive methods that fall short of torture produce false confessions, then I submit that they are profoundly unjust and should be stopped on that basis. Depriving someone of sleep to the point where they tell a lie that incriminates them or others just so that they can finally sleep simply isn’t morally right, especially when the consequences of a false confession may be spending the rest of their lives in jail or even the death penalty.
I am no expert in these matters but have been led to believe that torture is becoming increasingly devalued as an interrogation technique simply because it too often leads to false confessions. I don’t know what the percentages are and I don’t know if the same percentages apply to coercion as apply to torture. However, if coercive methods DO lead to any significant number of false confessions, users of these techniques are helping obtain extremely unjust results.
Unlike Stalin’s minions, I am confident that our interrogators are looking for truth, not just an excuse to lock up or execute suspects that have crossed their paths or meet quotas for convictions. But a false confession is a false confession, regardless of how it was obtained or by whom. We simply must not use techniques that lead to false confessions if we value justice.
I know that this position throws a wrench into the works and I deeply regret it. I certainly don’t want terrorists to commit terrorist acts and I don’t want them to get away with them either. But what kind of people are we if we use techniques like sleep deprivation to get them to admit to things they didn’t do? Innocents are arrested by mistake sometimes and we’ve all heard of people who endured long prison sentences or even the death penalty for things that they were later found not to have done. If we knowingly use techniques that can lead to false confessions, we are perpetrating INJUSTICE, not achieving justice.
AFAIK, for the most part the objective when enhanced interrogation (coercive) techniques are employed on a terrorist in custody is not to obtain a confession. We already know they are involved in terrorist activities. That is why they are in custody. Obtaining a confession to be used to convict is not the objective. The objective is to obtain information that can be used to disrupt and hopefully unravel terrorist plans, plots, cells, communications, logistics, etc. Ideally, information leading to organization leaders is obtained.
That information must be verifiable. Unverifiable information is useless. Interrogators are not idiots. They know that someone being interrogated may provide false information, whether coerced or not.
Also, any confession that might be obtained while seeking information must be corroborated.
KSM is a case in point. We had no doubt he was responsible for 9/11. We did not need a confession. He wasn’t waterboarded to obtain a confession. In custody he openly bragged that there were other plots in the operational phase, presumable on the scale of 9/11. He was waterboarded to obtain information about those plots. He refused to give up that information in a useful time frame using other interrogation techniques. Time was of the essence.
Dumber than a box of rocks. Absolute horse-crap. Now every one of these terrorist turds will use the same legal tactics to get acquitted, and since this case has set legal precedent, they will ALL get off. Congratulations, USG.
From now on, the US military and CIA should take no prisoners. Kill every last one of the bastards on the spot. No prisoners, no trial, no problem.
Wow. Just wow. And your name is “constitutionalist”. How ironic.
He’s not saying anything unconstitutional. He’s saying, and I agree, don’t bother capturing them anymore. Just kill the enemy by the bushel as Patton so eloquently put it. Capturing prisoners is risky anyway. It’s a huge financial and manpower burden. If they are just going to end up going free because of our morally bankrupt Justice Department and their legal shenanigans, then I’m all for ceasing the capture of prisoners.
constitution applies to u.s citizens not to terrorists and pirates
“From now on, the US military and CIA should take no prisoners. Kill every last one of the bastards on the spot. No prisoners, no trial, no problem.”
—-
To some degree, Obama seems to be doing just that. He is assassinating them by remote control using Predator drones and Hellfire missiles.
Note that there have been no new detainees sent to Gitmo. And none have bee brought into the US, which is where Obama and Holder want to bring the Gitmo detainees. This is odd. What’s going on? If we are still capturing terrorists we must be holding them in Afghanistan or using rendition to send them to other countries. Either way, I bet they would be better off in Gitmo.
I don’t have a problem with all of this myself, but the fact is we seem to be capturing fewer and killing more.
What I wonder is the following: 1) are we killing some “alleged” terrorists” instead of capturing them because Obama and Holder do not know what to do with them if we capture them? and 2) are we killing some “alleged” terrorists who if captured and sent to Gitmo would have been released, as about 80% of all detainees that were sent to Gitmo have been?
In any event, the hypocrisy of the Obama admin on this issue is stunning. And the silence of the left and the MSM about it confirms their bias.
The jury deliberated a mere 5 hours before convicting Ghailani of conspiracy to destroy property but not to murder the people in that property.
Ten percent of the population is mentally ill. Thirty percent is delusionally progressive. Forty five percent will vote Democrat regardless of how corrupt, clueless or devoid of merit the candidate might be. It takes only one juror to hang a jury. Trying terrorists by jury is insane. As is affording terrorists all the rights of American citizenship and subjecting those fighting the terrorists to the same standard of conduct of police investigating a mere domestic crime.
Barack Obama has the mentality of a college sophomore.
Form the al-Qaeda training manual:
http://www.pbs.org/wgbh/pages/frontline/shows/network/alqaeda/manual.html
IF AN INDICTMENT IS ISSUED AND THE TRIAL BEGINS, THE BROTHER HAS TO PAY ATTENTION TO THE FOLLOWING:
1. At the beginning of the trial, once more the brothers must insist on proving that torture was inflicted on them by State Security before the judge.
2. Complain [to the court] of mistreatment while in prison.
[...]
4. The brother has to do his best to know the names of the state security officers, who participated in his torture and mention their names to the judge. These names may be obtained from brothers who had to deal with those officers in previous cases.
Meanwhile,
Guidelines for Beating and Killing Hostages: Religious scholars have permitted beating…In this tradition, we find permission to interrogate the hostage for the purpose of obtaining information. It is permitted to strike the nonbeliever who has no covenant until he reveals the news, information, and secrets of his people.
The religious scholars have also permitted the killing of a hostage if he insists on withholding information from Moslems.
Unfortunately, this president doesn’t think we are at war. He would not have gone into Iraq. He’s not serious about winning in Afghanistan. He would not have allowed water-boarding and will not secure our borders. He thinks Islam is a beautiful thing and that past American foreign and domestic policies are responsible for most of the problems that exist in the world today. That we should be cut down to size and meekly take our place alongside, and subject ourselves to, less powerful countries under control of the UN. He’s OK with a nuclear armed Iran…. he’ll speak out against it, but will never lift a finger to stop it. He thinks violent advocacy in the Koran and the Haditha are no different than those in the Old Testament of the Bible. That violent Jihadis are random criminals, rather than a loosely organized, but a virulent anti western, movement attacking modernity and civilization itself. That Christian violence of hundreds of years ago is somehow equivalent to the carnage Muslims are visiting upon thousands of innocents today. Am I being unfair here?
Not unfair at all. Everything you say about Obama is true. This is why I call him sophomoric. He may be 49 years old but he still believes all the demonstrable lies he was told by his left wing professors.
I can see Al Qaeda, the Taliban, Hamas, Hezbollah and Ahmadinejad sitting around having a good laugh, celebrating and thinking how easy it’s going to be to bring these “fools” to their knees. Infuriating and two more years of humiliation with these pompous buffoons at the wheel of the American ship of state.
Well said, all. The real culprits, the ObamaVoters, probably won’t ever read this web site. But those who do need to take notes and remember all the reasons that this regime should never have been elected. They also need to write letters to the editor stating the disastrous results of Obama’s administration and socialist ideas, and how they have crippled the nation. Only by a continuing reminder of what they have done to our unique system of government do we have any hope of reversing things. But human understanding has come a long way since the days when people were convinced the earth was flat, so there is still hope if we work at it.
Very interesting, Ms. Toensing. In the second-to-last paragraph you say that the government has maintained and Judge Kaplan observed that even if Ghailani were acquitted he could be held indefinitely as an enemy combatant.
Just so I understand, then, the current administration has eschewed the military tribunal process that could reasonably flow from Ghailani’s status as a enemy combatant, insisting instead on trying him in the criminal courts. But even in the event of a full acquittal in the criminal judicial system the government could hold Ghailani indefinitely as an enemy combatant, despite his status as which having been subordinated only for the purpose of conducting a show trial in the criminal courts? What then was the point of this government exercise in circular semantics?
Is this how our current administration interprets justice? Imprisoned convicted criminal if Holder wins; imprisoned enemy combatant if Holder loses?
Ai-yi-yi. A farce indeed.
Yes, and as Ms Toensing points out, the Obama-Holder position of giving a jury trial to terrorists who attack civilians and a military commission trial to those who attack the military is equally ludicrous. In the upside down world of Barack Obama the worse the conduct of the terrorist, the more protections he should be given. Smart Power? The man is a joke.
Give them jelly apples and they will talk.
Imagine doing this 200- 300 times with different terrorists. It’s good in a way that this turned out as it did, it highlights the profound mental disease of the left, and of course Obama and his whore Holder. There must be easier ways for these degenerates to display their imagined moral superiority over Normal People. Maybe doubling our deficits?
But it may be to late for that. They’re creative though at perversion, they’ll come up with something disgusting.
Whoa, is this Victoria Toensing, as in Joseph DiGeneva’s main squeeze?
If this is allowed to continue you might as well just declare open season on American citizens to these Islamofascists.
Another hit for Holder. Is it just me, or is everybody Obama has surrounded himself with either incompetent, corrupt or both?
Let’s see what happens when a White, Christian, Swedish terrorist…
…nevermind. No such thing.
How are these “terror trials” not treason by Obama? Impeachable offense if you ask me.
I bet BHO and Erick Holder are quite content with the results of the trial. I expect them to go around and say “the system worked”. These are radicals, no matter how much a winning smile they have. Remember, Eric Holder filed an amicas brief for a GTMO detainee, which he did not reveal in his confirmation hearings. Disgusting liars all.
Why is no one using the word “incompetent” when describing Obama and his minions?
incompetent describes someone who is trying to do the right thing but is incapable of execution
obama, as the good little statist, is totally competent at being a totalitarian
Alice aka Victoria Toensing , you’ll make more sense when your return from Wonderland. You’ve had too many conversations with the Queen of Hearts. Otherwise, your essay will make great work in Wonderland & in the Queen of Heart’s court of madness & mockery of justice. Stop listening to the Cheshire Cat as well.
Some-body woke up cranky this morning.
Got up on the wrong side of the bed, too.
Content free personal attack and ad hominem noted. And it’s not even funny, clever, or creative. Yawn.
Oops. That was meant as a reply to #22.
Sober up before you post next time, Shaw.
Obama/Holder promise that, in the event of acquittal, these terrorists will still be held indefinitely.
I see — in order to prove to the world that we are a nation of laws, that our system is just, Obama has now instituted a program of Kangaroo Courts… and damn the results if it doesn’t quite work out.
Forgive my purple prose, but the assholishness of Obama and Holder is without bounds.
On the other hand, one has to wonder whether an acquittal would have so painted the Obama administration into a corner that the Holder/Obama dream team might have actually entertained Ghailani’s release.
Just because the government “has maintained that if he were acquitted of all charges, it could keep him in custody” [emphasis on "could"] doesn’t mean that the Obama administration would be capable of articulating a defensible rationale for continuing to hold Ghailani as an enemy combatant after he had been acquitted in the very criminal court system in which the administration demanded he be tried.
Not releasing an acquitted Ghailani would serve to contradict the essential reasoning the government used in forcing a criminal case and rejecting the military tribunal in the first instance. Unfortunately, releasing a character like Ghailani to make a perverse point just doesn’t seem to be something beyond the reach of the current administration.
“Ghailani Trial Provides Road Map to Victory for Future Terror Detainees”
Well, they better get a move on, because in two years time B. Hussein Obama, along with another slew of Communists (formerly known as Liberal Democrats), will be out of office. At which point, sanity will return to the land, and jihadi murderers will once again be pinned to the dissecting tray.
I have enjoyed Ms. Toensing’s comments over the years but was very disappointed when she endorsed and defended Holder’s appointment as USAG. I wonder if she now regrets that endorsement?