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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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.