Ghailani Sentence Shows Federal Courts Work, Reveals Extent of Republican Hysteria

26.1.11

For those of us seeking a grown-up debate about Guantánamo in the two years since President Obama came into office, the most troubling development has been the retrenchment of Republican opposition to the closure of the prison, backed up by alarming support for the pro-Guantánamo position by members of the President’s own party.

Like a dark magic spell capable of banishing all sensible discourse in an instant, the merest mention of the words “Guantánamo” and “terrorism” in the same sentence is sufficient to send lawmakers into paroxyms of hysteria, and nowhere is this more true than when it comes to proposals to put any of the Guantánamo prisoners on trial for their alleged offenses.

Guantánamo’s supporters are so wedded to the Bush administration’s false and damaging nation that, in the “War on Terror,” terrorists are no longer criminals but are “warriors,” that when Attorney General Eric Holder announced in November 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, they raised a cacophonous roar of opposition, bleating that establishing security at the courthouse would be prohibitively expensive, and warning that the trial would lead to a terrorist attack by al-Qaeda.

Last month, emboldened by their success in persuading Obama to shelve the plans for the 9/11 trial, lawmakers followed up by including a provision in a military spending bill prohibiting the transfer of any Guantánamo prisoner to the US mainland for any reason (and explicitly mentioning Khalid Sheikh Mohammed by name), even though it was clearly unconstitutional to do so.

Conveniently ignored by the fearmongers was the rather more mundane reality that, when Ahmed Khalfan Ghailani, a former CIA “ghost prisoner,” and the only Guantánamo detainee to be moved to the US to face a federal court trial before Congress decided to impose unconstitutional demands on the President, was put on trial in New York in October, there was no need for wildly expensive security, and no notion that terrorists would swoop from the skies to attack the courtroom.

Instead, the apologists for Guantánamo immediately changed their approach, blasting Judge Lewis Kaplan for obeying US law and refusing to accept information derived through the use of torture — the name of an allegedly important witness who later testified under dubious circumstances, and whose name was only divulged by Ghailani while he was being tortured in a secret CIA prison.

While this was despicable enough, as it indicated that, so long as the words “Guantánamo” and “terrorism” were uttered together, it ought to be acceptable for a District Court judge to ignore the US anti-torture statute, the critics of federal court trials then proceeded to decry the trial’s conclusion — a guilty verdict on one count of conspiracy in connection with the US embassy bombing in Dar-es-Salaam, Tanzania, in August 1998, along with the dismissal of 284 other charges — even though, as we saw yesterday in the sentence handed down by Judge Kaplan, that single conviction has led to a life sentence without parole.

What is particularly depressing about this topsy-turvy “Alice in Wonderland” world, in which success is portrayed as failure, and no one even blinks in dissent, is that the manufactured hysteria when “Guantánamo” and “terrorism” are mentioned together not only disguises the fact that federal courts have a proven track record of successfully prosecuting terrorism cases (and are, in fact, empowered to deliver punitive sentences on the flimsiest of bases), but also disguises a fundamentally bleak truth about Guantánamo.

The bleak truth is that, in a prison with such a notorious and demonstrable history of torture — particularly in connection with Ghailani, KSM and 12 other “high-value detainees,” as well as dozens of other men tortured in secret CIA prisons, or in proxy facilities in other countries — the presumption ought to be that the government’s assertions about these men are fundamentally unreliable, because torture is unreliable as well as illegal, and should not be taken at face value.

Instead, however, the opposite is true, and Ghaliani, for example, was happily judged to be guilty until proven guilty, by those who will, no doubt, still complain that he received a life senternce on just one count of conspiracy, and not on all of the 285 charges he faced.

With Ghailani’s life sentence, it is time for this cynical nonsense to come to an end. Federal court trials for terrorists work, and opponents should now cease whining, let go of their ideologically misplaced obsession with trying “warriors” in military trials at Guantánamo, and allow the administration to proceed with the federal court trial of Khalid Sheikh Mohammed and his alleged co-conspirators.

Nine years and four months after the 9/11 attacks, the relatives of the victims of that dreadful day deserve justice, and not to be made playthings by cynical lawmakers — and their echo chambers in the right-wing media — who will soon realize that their beloved Military Commissions are fraught with problems, and will, if given the chance, shift their focus so that, in the not too distant future, we will be hearing that some people — like KSM and his co-accused — are so dangerous that they cannot even be put on trial at all.

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), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

7 Responses

  1. Norwegian Shooter says...

    Read Karen Greenberg’s incomparable coverage of the Ghailani trial at Mother Jones.

  2. Little Brother says...

    Cross-posted, with all due respect, from “CommonDreams” thread:
    ________________________________

    I highly respect Andy Worthington. And I fully understand his exasperation at the multi-layered hysteria surrounding the captives lawlessly imprisoned in various Imperial Amerikan Bastilles and gulags.

    Still, I’m scratching my head over his argument that the Ghaliani VERDICT, and “the fact that federal courts have a proven track record of successfully prosecuting terrorism cases (and are, in fact, empowered to deliver punitive sentences on the flimsiest of bases)”, somehow establishes that “Federal court trials for terrorists work”.

    I may be missing something, but the appalling conclusion that the Ghaliani trial in any way represents honest due process, justice, and the “rule of law” at best misses the forest for the trees.

    It reminds me of the logic employed by opponents of the ratcheted-up, draconian greenlighting of unlimited warrantless surveillance (and virtual total immunity for telecommunications corporations partnering with the security state to achieve this goal) enabled by the FISA legislation passed in 2008– the law supported by Bonnie Prince Obama despite his repeated promises to oppose it.

    There’s no doubt that FISA 2.0 is a reprehensible piece of legislation. But opponents (including civil-liberties champion Glenn Greenwald) offered the rearguard critique that FISA 2.0 was unnecessary because we already had a special secret court under the existing FISA law that readily rubber-stamped government requests for surveillance warrants.

    That is, in light of the ULTRA-heinous provisions of FISA 2.0, some opponents were suddenly willing to overlook or downplay the heinous authoritarian, and arguably unconstitutional, judicial despotism embodied in the original FISA law.

    This seems to me to be an obvious error; not so much “two wrongs making a right” as “a worse wrong making a lesser wrong right”. IMO, declaring an abominable travesty of justice acceptable simply because an even WORSE alternative looms is still another fatal lesser-evil trap. In these troubled, apocalyptic times, such “ends/means” traps proliferate across the political landscape like mushrooms after a soaking rain.

    Similarly, Worthington’s embrace of the ordinary US federal judiciary’s “due process” seems to arise from his justifiable distress at the hysteria and demagoguery that presently keep the Gitmo captives in judicial deep freeze.

    I think it’s worth noting the “forest” that Worthington is missing, or temporarily ignoring, for the trees:

    I recently described it as a “two-prong strategy” in which past, present, and future captives in the bogus “War on Terror” are effectively buried alive:

    1) Punt/kick the can down the road for as long as possible– it’s “worked” SO far;

    2) If push ever really does come to shove, stage Show Trials that would make Stalin blush to ratify keeping the captives permanently sealed away for life in one SuperMax Bastille or the other. Keep the proceedings as private and the records sealed except for the minimum necessary to appease international curiosity and criticism, and serve propaganda purposes.

    2a) Maintain a steady stream of self-serving high-flown pronouncements from Elected Misrepresentatives, maladministration officials, and the corporate media commentariat of expert bloviators and celebrity infotainwhores to cheerlead and manufacture consent from the fearful, complacent, and unreflective populace– escalating back-patting to dervish-like spin incorporating pious mantras, e.g. “Justice is served” and “The Rule of Law”.

    Regarding prong #2, I grudgingly concede the possibility that a token handful of captives may receive less-draconian sentences as a result of “plea-bargains” or similar dodgy deals.

    These will take the form of “out of sight, out of mind” transfers to destinations outside the US, with a slew of onerous conditions prohibiting the captive from enjoying anything remotely like liberty and freedom.

    They will be absolutely “legally” enjoined and prohibited from bad-mouthing their kidnappers by openly and publicly discussing the truth of their ordeals.

    I recognize that, as with the FISA 2.0 debacle cited previously, there’s a logical argument that by eliminating or forestalling the “worse wrong”, civil-liberties proponents gain traction and momentum for going on to properly tackle the “lesser wrong”.

    That sounds well in the abstract, but I have no confidence that this dynamic actually obtains in the real world. So I can’t share Worthington’s view that mounting the show trials in regular courts is a welcome step ahead.

  3. Andy Worthington says...

    Hi, Little Brother. Points well taken, and I had extensive discussions along these lines while in the US recently. My point in the article was to show up cynical Republican maneuvering on Guantanamo terrorist trials, and I tried not to gush too effusively about the legitimacy of federal court trials (as was intended in my short aside about how the courts are “empowered to deliver punitive sentences on the flimsiest of bases”). I accept, however, that I may have failed. To clarify, then, the problems with trying terror suspects at Guantanamo are two-fold: the Military Commissions are a disgrace, and federal courts are an established and legitimate alternative. HOWEVER, the federal courts’ ability to “deliver punitive sentences on the flimsiest of bases” is also a major problem.
    To be honest, I can’t see an easy way out of this, but even though the Military Commissions have, in 4 out of 5 cases, delivered sentences that are much less punitive than they would have been in federal court, I really can’t endorse them in any way. I guess what needs to happen is that, while condemning the Commissions, there needs to be a simultaneous mission to challenge the excessive punishments handed down for terrorism-related offenses in federal court.

  4. Andy Worthington says...

    And here’s Bill from Saginaw’s take on Little Brother’s comment:

    On this one, I respectfully suggest you may be missing a couple of somethings. According to the New York Times accounts of the Ghaliani trial, the jury’s verdict, and Judge Kaplan’s eventual life sentence, to my way of thinking this defendant did receive “honest due process.” He was not railroaded in a staged “show trial” that would have made Stalin blush, or even Dick Cheney.

    The jury that heard the government’s evidence found this man Not Guilty on 284 murder Counts and Guilty on one Count of conspiracy to bomb government property. His torture-induced confession was kept out of evidence. Nor was the jury ever told that the day before the blast that killed nearly 300 people at the US embassy in Tanzania, Ghaliani was mysteriously spirited away to Pakistan; that he spent six years in Afghanistan as a fugitive, which included stints in Al Qaeda training camps and functioning as a driver for Osama bin Laden; and that he was eventually captured by Pakistani officials in 2004 after a fourteen hour gun battle.

    Any ringmaster of a good show trial – whether in federal court or in front of a military commission tribunal – would have made those biographical tidbits part of the lede, and likely let the torture-induced statements into evidence for the jury to consider as well. Stir that sensationalism into the mix alongside the color footage of the carnage that the prosecution did get into evidence, and many juries would have sent the defendant down on all 285 Counts despite his actual, apparently fairly low level involvement with his co-conspirators in the bombing plot.

    Life without possibility of parole in the Florence, Colorado supermax is not what I consider a soft-on-crime sentence from a bleeding heart judge. Defendant Ghaliani said nothing on his own behalf at the sentencing hearing when given the chance to do so. I’m pretty sure he chose not to testify at the trial, too.

    The federal sentencing guidelines permit judges to impose a top end sentence like this one in conspiracy prosecutions, even when the jury finds reasonable doubt on 284 Counts out of 285. There is a huge potential for abuse of the Draconian sentencing structure of the Federal Criminal Code, but there is also method behind the madness. If this man really does know things of genuine value about Al Qaeda, Osama, training camps, and/or skullduggery perhaps by intelligence agencies surrounding the US embassy bombings, he now has a powerful incentive to speak up truthfully in hope for a possible leniency light at the end of the tunnel later.

    Ghaliani was, in my opinion, given fundamental due process of law. This did not appear to me to be a “show trial in regular court”, as you term it. If that makes me guilty of the sin of lesser evilism, so be it. I’ll take imperfect justice by jury trial over the institutionalized injustice of torture and shortcut, rigged military tribunals any day of the week.

  5. Habeas Hell: How The Great Writ Was Gutted At Guantánamo « Eurasia Review says...

    [...] the few men in Guantánamo who are actually accused of involvement in terrorist activities either await federal court trials that may or may not ever happen, or are cutting plea deals in Military Commission trials that, if [...]

  6. Write to the Forgotten Prisoners in Guantánamo [Summer 2011 - July 24th Deadline] « aseerun says...

    [...] Ghailani (ISN 10012, Tanzania) was transferred to the US mainland from Guantánamo in May 2009 and received a life sentence after a federal court trial in January this year. He is being held in the Supermax prison in [...]

  7. [ACTION] Please Write to the Forgotten Prisoners in Guantánamo on the 11th Anniversary of the Opening of the Prison « freedetainees.org says...

    [...] Ghailani (ISN 10012, Tanzania) was transferred to the US mainland from Guantánamo in May 2009 and received a life sentence after a federal court trial in January 2011. He is being held in the Supermax prison in Florence, [...]

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