The headline writers were referring to the federal court trial, in New York, of Ahmed Khalfan Ghailani, a former CIA “ghost prisoner” (for two years and two months), who was then held at Guantánamo for two years and eight months before his transfer to the US mainland in May 2009 to face charges of involvement in the 1998 African embassy bombings in Nairobi and Dar-es-Salaam, in which 224 people were killed, including 12 Americans. Pre-trial hearings had proceeded smoothly, as had jury selection two weeks ago, so what on earth happened last Wednesday that could have prompted such a “threat” and a “setback” to his trial?
The answer, sadly, reveals the depths to which both respect for the law and abhorrence of torture have been sidelined or banished in post-9/11 America. The prompt for those shocking headlines was the refusal of the judge in Ghailani’s case, Judge Lewis A. Kaplan, to accept information derived through the use of torture, and, specifically, his refusal to allow the government to use its star witness, a man whose identity had only been revealed by Ghailani while he was being tortured in a secret CIA prison.
This is what Judge Kaplan wrote in a three-page order denying the government’s intention to use the testimony of Hussein Abebe, a Tanzanian taxi driver described by prosecutors as a “giant witness,” who, as the Washington Post explained, was “expected to testify that he sold Ghailani the TNT used in the bombing.”
The court has not reached this conclusion lightly. It is acutely aware of the perilous nature of the world we live in. But the Constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.
When I read those words, I was delighted that Judge Kaplan had delivered such a ringing endorsement of the US Constitution, and, specifically, of the Eighth Amendment’s prohibition on the infliction of “cruel and unusual punishments.” I had, moreover, taken it for granted that people knew that information derived through the use of torture was prohibited in US courts, which was why much of the mainstream media’s response came as such a shock. Were those responsible for coming up with sensational headlines really trying to argue that information obtained through the use of torture should be allowed in a US court?
As it happened, media outlets like the Washington Post and the Los Angeles Times were not actually making that argument behind their headlines, but by dwelling on the supposed significance of Judge Kaplan’s ruling for future Guantánamo trials, and by failing to openly acknowledge that he had done nothing more than uphold the law, they failed to present the story fairly.
In the Washington Post, for example, the headline was followed up by a claim that Judge Kaplan’s ruling “could complicate any effort by the Obama administration to revive its plans to put major al-Qaeda figures held in Guantánamo Bay, Cuba, on trial in civilian courts in the United States.” It was not until later in the article that this claim was challenged, and was challenged not by a liberal commentator, but by Charles D. “Cully” Stimson, former deputy assistant secretary of defense for detainee affairs in the Bush administration and now a senior legal fellow at the Heritage Foundation, who pointed out that the ruling was not necessarily damaging at all. “It would be dangerous to interpret this ruling as forever foreclosing or damaging the possibility of other cases coming to federal court because each case is sui generis,” Stimson explained.
As well as being irresponsible in terms of respecting the US Constitution, another reason this type of reporting was so inadvisable was because it appeared to give weight to other parties who were all too willing to attack Judge Kaplan in order to advance their own agenda. These commentators, who support trials by Military Commission, are desperate for federal court trials to fail, so that they can justify their insistence that all suspected terrorists should be tried by Military Commission at Guantánamo.
This point of view, which is based on ideology rather than common sense, relies on the false assertion — essential to the Bush administration’s “War on Terror” — that terrorists are “warriors” rather than criminals, and its supporters maintain their point of view in spite of compelling evidence that the Commissions have been an abject failure, securing only four convictions, and permanently blighted by the fact that they have been established to try non-existent “war crimes,” whereas the federal courts have an established track record of successfully convicting terrorists in hundreds of cases.
Moreover, in dealing with these differing points of view, the Washington Post again muddied the waters. Even though “Cully” Stimson explained that “It’s not clear the outcome would have been any different in a commission,” the Post suggested that the rules of the Military Commission “nonetheless appear to contemplate the admission of evidence derived from statements obtained through torture or cruel treatment if a military judge finds that the evidence ‘would have been obtained even if the statement had not been made’ or the ‘use of such evidence would otherwise be consistent with the interests of justice.’”
The Post may technically be correct, although the possibility of torture evidence being allowed has not yet been thoroughly tested in the Military Commissions. More importantly, however, raising these questions unnecessarily diverts attention from what is happening in New York. As Attorney General Eric Holder explained when Judge Kaplan issued his ruling, “We intend to proceed with this trial,” and on Sunday, in a letter from the office of the United States attorney in Manhattan, the government conceded that it would not challenge Judge Kaplan’s ruling, pointing out that, although it “respectfully disagreed with the court’s decision and believes that, under different circumstances, it would merit review by the Court of Appeals,” an appeal would cause “a delay of uncertain, and perhaps significant, length,” which, as the New York Times explained, “could have greatly inconvenienced many foreign witnesses who had already arrived in New York, based on the original starting date, and others who had made plans based on that date.”
More to the point, and largely overlooked in the often overblown reporting of last week, is the fact that, before his two years in secret CIA prisons when he was subjected to the use of torture, Ghailani had already been indicted (back in 1998) for his involvement in the African embassy bombings, and could — and should — have been tried in federal court after he was first captured in Pakistan in 2004.
This, after all, is what happened with four of his alleged co-conspirators, who were tried in federal court in 2001, after a process of interrogation that did not involve the use of secret prisons and torture. After being convicted in May 2001, they were sentenced to life without parole in October 2001, just six weeks after the 9/11 attacks.
With Judge Kaplan’s necessary intervention last week, the way has been paved for Ahmed Khalfan Ghailani also to be tried without use of the fruits of torture, and if — as seems unlikely — the government does not have untainted evidence with which to convict him, then the only just response is for the government to set him free.
This, of course, is another contentious idea, and one that Judge Kaplan acknowledged when, as the Washington Post described it, he stated that Ghailani “could probably continue to be held as ‘something akin to a prisoner of war’ even if he were found not guilty.” If that were to happen, it would, understandably, open up a new seam of bitter controversy, but we are not there yet, and in the meantime, Judge Kaplan’s decision to uphold the Constitution should be celebrated, and those tempted to turn Ghailani’s trial into some sort of circus should focus instead on the previous convictions for the 1998 bombings, which suggest that enough untainted evidence exists to secure a conviction that will validate the federal court approach and cast further doubt on the purpose and viability of the Military Commissions.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
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You’re right, the articles “failed to present the story fairly.” But I wouldn’t harp so much on the headlines or even contemplate that they might mean torture is okay. Headline writers, and journalists, don’t explicitly try to argue anything. That is, the sin here is of omission, not commission. As a factual matter, the ruling was a setback for the prosecution and it did threaten civilian trials because of the political backlash. Not to side with the prosecution or the fear-mongering politicians, they are wrong on the law and on the merits, but those things did happen. Finally on this point, I would note that both reports quoted the judge’s line about the Constitution. At least that got in there. Again, the reports weren’t good, but they weren’t purposely bad either. I’m afraid I’m resigned that neo-cons and cons are the two sides in these types of articles.
Great point on his previous indictment. I read more than most and I didn’t know this. What I am shocked about is that a Federal judge would say a not guilty defendant could continue to be held “something akin to a prisoner of war.” First, wouldn’t that be an admission that the trial was for show? And hasn’t the “something akin” attitude been the exact problem we’ve botched from the get go?
Thanks for your continuing excellent work Andy!
What I would like torture apologists to (1) realize; (2) acknowledge, is that it is the work of writers and researchers like you, and the work of the brave lawyers who have made substantial and sometimes physically dangerous efforts on the captives’ behalfs that helps make us safe.
Torture has been an abject failure. As I believe you have pointed out the UN would not have signed on the the USA’s plan to invade Iraq if it hadn’t been for the false confessions coerced from Ibn Al Sheik Ibn Al Libi. Based on his false confessions Colin Powell told the UN the USA knew (1) Iraq still had a large ready arsenal of chemical / biological / nuclear weapons of mass destruction; and (2) that Iraq was sending Iraqi weapons experts to al Qaeda camps to train al Qaeda recruits in how to use those WMD to attack us.
The cost of the Iraq war has been immense. Back in 2002 I heard some Cassandras predict the war would cost over a trillion dollars. Those predictors were correct, this war, based on a claim from a false confession under torture, has already cost hundreds of thousands of Iraqi lives, and has cost Iraq and the USA and the other members of the “Coalition of the willing” well over a trillion. Lost productivity from the disabled veterans, and their ongoing medical costs could cost the USA at least another trillion, over the next 40-50 years.
Torture failed. Torture has failed, over and over again.
Openness and transparency would have protected us from the Bush administration’s claims about Iraq’s WMD. If the world had known how unreliable the underlying evidence was the world would not have signed on board the invasion.
The fine work of researchers like you helps protect the public from wasting resources on future wild goose chases triggered by relying on unreliable information stemming from false confessions and false denunciations. Those habeas corpus lawyers’ work has also played a very significant role in keeping the public safe from crazy security measures based on unreliable information.
Apologies for the delay in replying, Norwegian Shooter and arcticredriver. I was being kept extremely busy in Berkeley for a week!
Thanks for the omission/commission point, NS. That’s essentially correct, but what enraged me was that the slightly sensationalist twist actually feeds the backlash.
Glad to know that my mentioning the previous indictment, and successful trials, was useful, and again there’s a sin of omission if it’s not being mentioned elsewhere.
As for the judge’s mention of holding Ghailani as “something akin to a prisoner of war,” I think that certainly provides an indication that there’s a show trial aspect to the whole business, and yes, “something akin” is exactly the problem at Guantanamo.
And arcticredriver, thanks for spelling out so clearly the problems with torture. What you also touched upon, however, which is even more deeply troubling, is the extent to which it was used not to secure supposedly useful “actionable intelligence,” but to secure false confessions to justify the invasion of Iraq. I intend to write more about this in the near future.
On Facebook, Linda Olson-Osterlund wrote:
Thank you for the analysis. Always what we need to hear!
[...] life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts [...]
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