Patterico's Pontifications


Obama’s Terrorism Failure: The Witness Against Ghailani Would Probably Have Been Allowed to Testify in a Military Commission

Filed under: General — Patterico @ 7:13 am

Last night I wrote about the acquittals of Ahmed Ghailani on 279 of 280 counts relating to the 1998 Tanzania embassy bombing. A couple of commenters challenged me on my assumption that prosecutors would likely have been able to call the key witness against Ghailani if he had been prosecuted by way of a military commission. For example, commenter edgonzo wrote: “The inadmiss[i]ble evidence here would probably not have been admiss[i]ble in a Military Commission either. That being the case, I’m not sure what the point of this post is.”

Not so. As Marc Theissen explained last month:

[I]f the Obama administration insists on prosecuting Ghailani, there is a forum where the key witness against him would almost certainly be permitted to testify: a military commission at Guantanamo Bay.

Kaplan barred the witness because in federal court his testimony is considered the “fruit of the poisonous tree.” But even under the Obama administration’s revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the “interests of justice” favor it. As Lt. Col. David Frakt, a Guantanamo defense lawyer and advocate for civilian trials for terrorists, told me, “because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission.”

The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration’s ideological insistence on treating terrorists like common criminals and trying them in federal courts.

Exactly. As I explained last night, the judge who excluded the witness acknowledged that “national security motivated the CIA interrogations” because “[t]he identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security.” But in a civilian court, which devised exclusionary rules designed to address a different situation (typical police interrogation of criminal suspects), the CIA’s motive was not reason enough to admit the evidence. In a military tribunal, I believe the judges would have given greater weight to the CIA’s benevolent motives and admitted the evidence.

This is why Obama’s decision was such an unnecessary disaster.

39 Responses to “Obama’s Terrorism Failure: The Witness Against Ghailani Would Probably Have Been Allowed to Testify in a Military Commission”

  1. But as long as they’re OK with grabbing everyone’s junk at will, we’ll be safe.

    Dmac (498ece)

  2. So given that this guy will get 20 to life without parole, where’s the failure?

    imdw (8bb588)

  3. Not so different from the jurisdiction-hunting civil plaintiffs who flocked to Mississippi back in the day.

    Perfectly legal and well within the rule of law.

    In the case of these murderers, required. However, for close calls (those picked up near battles but appear to not have real ties to combatants) I insist that the government lean backwards to establish guilt prior to prosecuting in a tribunal. There are very few of these and I would hate for a genuine innocent’s conviction to poison the process/necessary work in punishing the 99% who are guilty beyond any doubt whatsoever.

    Ed from SFV (6edf50)

  4. But in a civilian court, which devised exclusionary rules designed to address a different situation (typical police interrogation of criminal suspects),

    How is that a different situation? He’s accused of a crime against the US. He gets arrested and a trial. he gets an attorney. And it’s just possible that he gets acquitted, since, you know he may be innocent or the authorities may have screwed up. That’s justice. It discourages the authorities from doing things like grabbing people and holding them indefinitely and even torturing them.

    That’s an unambiguous good thing. Not being able to see that’s a good thing is frankly a bit frightening, since it suggests you not only feel omniscient in your ability to assign guilt and innocence but that you have no problem with the abuse of helpless prisoners by authorities with no accountability.

    That’s not very limited government Tea. On the contrary that’s classic fascism cola.

    Tlaloc (200864)

  5. How is that a different situation?

    One difference is that crime in war has always been treated differently. Like it or not, that is historical truth.

    Two, the particular crimes of most of these accused also fall under Geneva Conventions. Among other things, summary executions are allowed. At least these guys will get an airing of their story.

    Ed from SFV (6edf50)

  6. Probably?
    It’s a 100% certainty!

    AD-RtR/OS! (a60876)

  7. “it suggests you not only feel omniscient in your ability to assign guilt and innocence”

    Tlaloc – Not surprising you want to ignore the fact the guy confessed to delivering the explosives used in the bombings and the fact that the government could not present that evidence at trial. Guilt was admitted but not admissible in this case. How’s that liberal tolerance working out for you today?

    daleyrocks (940075)

  8. Still not convinced; David Frakt seems only to be stating a point of fact, he’s not offering a strong view on what would have happened. The military commission rules on coerced evidence are different, but you have to believe they are profoundly different for a military judge to have reached a different decision. Do you think they are? Doesn’t seem that way to me.

    As I see it, if Judge Kaplan didn’t allow the Abebe testimony, the more reasonable conclusion is that a military commission would have reached the same decision.

    Edgonzo (6febc2)

  9. Trying these people under civilian rules when they have declared and instigated war on America rather than with military courts is hogswaddle. They are not ‘civilians’. Not to mention that we the taxpayer would save a ton of money if these people were tried in military courts and that the trials had already begun and were halted costing even more tax dollars. This is ideological ridiculousness. Security is also cheaper if we stick with the military trials. They are NOT subject to the Geneva Conventions because they were NOT in uniform and they were NOT in the military service of a nation. PERIOD.

    This is the same ideological idiocy that has Catholic Nuns and toddlers being invasively searched in our airports. It is past time for the American People to stand up and say ENOUGH with POLITICAL CORRECTNESS! If all suicide bombers and hijackers are Muslims or even if just 99% are Muslims it makes complete sense to concentrate our security measures on that population. It is not REASONABLE to search people who DO NOT FIT THE PROFILE.

    I have good medical reasons to avoid unnecessary radiation but will still go through the stupid machine because the back of the hand pat down was invasive, humiliating and repulsive enough. I don’t think I could handle the type of open palm search they are doing now. Nor should I have too because I DO NOT FIT THE PROFILE!

    We need the government to use common sense, oh wow, like that would EVER happen…

    Texas Mom 2012 (cee89f)

  10. The concept of extending our law to foreign nationals committing acts of war or terrorism on foreign soil is mindboggling. (though the argument in this case is that the embassies are US soil).

    Unlawful combatants should never see the face of a US judge. They should be tried on the field of battle and executed promptly.

    That’s not a route to fascist government. It’s actually a protection of our citizens interests at home.

    If prosecutors in civilian court are forced to try these cases, they will strive to set precedent on admission of evidence that we have not seen before. From there, it is very short journey to using that same precedent against US citizens in court.

    A bright line separation of jurisdiction is good for the security interests of the nation, as well as the civil protections of its citizens.

    XBradTC (a0c2c4)

  11. (though the argument in this case is that the embassies are US soil).

    Yet, he was acquitted of the actions perpretrated on American soil (the murders and destruction of property), yet was convicted on a conspiracy charge that would have to occurr on foreign soil, since I sincerely doubt that he met with his fellow conspirators on the grounds of the Embassy to plan the attack.


    AD-RtR/OS! (a60876)

  12. Patterico,

    Check out a passage from NRO’s McCarthy;

    Yet, because of a court ruling and DOJ concerns about opening up the interrogation can of worms, defense lawyers know the jury will learn none of this information. So what happens? Ghailani’s lawyer opens the case by telling jurors that, in 1998, his client was a babe in the woods who was never a member of al Qaeda, never “agreed or signed on to” bin Laden’s edicts to kill Americans; and, in his naivete, was duped by a friend into buying a truck he had no idea would be used by terrorists to bomb an embassy. The lawyer looked the jury in the eye and said, Ghailani “is not simply presumed innocent. He is innocent.”

    I’m not asking you to criticize Ghalini’s attorneys; I realize that they are defending him and must do their best in that endeavor. But this just seems like using the expedience of the Judge’s ruling (and the Fed’s reluctance to introduce the interrogation) as a cover to brazenly lie to the jury.

    From a professional point of view, doesn’t this cross a larger ethical line?

    Just curious of your opinion on this.

    Bob Reed (5f2db5)

  13. Bob, he was just stating his opinion.
    He can’t suborn perjury, but he surely can shovel it as opinion.

    And, just as diplomats – as representatives of the sovereign – are expected to deceive, why would we hold lawyers (which are nothing but “champions” of the parties, as are diplomats) to a higher standard?

    Remember, we go to court for “justice”, not to seek the “truth”.
    As we used to say in the service,
    if you need “truth”, go see the Padre and have your card punched.

    AD-RtR/OS! (a60876)

  14. I’m puzzled about the conduct of the defense in this case. Perhaps lawyers here can enlighten me. The defense lawyer is an officer of the court, and yet the defense lawyer made statements in court that he knew to be false. How is that not perjury? I thought that the lawyer is ethically required to advocate for his client and provide a vigorous defense, but that he was not allowed to make objectively false statements.
    Is it one of those things that just gets ignored because sending defense attorneys to jail for perjury is percieved as injuring all defendants?

    Daniel O'Neill (ee6766)

  15. If we let a President lie under oath surely we, as a country, can stomach lawyers lying in general, the way most people breath. Better that lawyers learn to lie than to use a teleprompter. We’re still paying for that mistake.

    East Bay Jay (2fd7f7)

  16. All good points AD-RtR/OS!, about the “realpolitik” of jurisprudence.

    And I’m familiar with that “truth” saying myself.

    I was merely interested in Pat’s opinion; my personal being that this appears on the surface to be contemptable, but may be more “nuanced” than I am aware.

    I realize that Adams defended the British soldiers in the matter of the Boston Massacre; a strong statement about the right to counsel as well as innocence before proven guilty. But I don’t think he stooped to lying about the matter.

    It seems to me that this behavior in court, in the service of an enemy of our nation, should be discouraged by imposing a penalty.

    But, what do I know…

    Bob Reed (5f2db5)

  17. Oh, rest assured Bob, there will be a penalty, in either this life, or afterward!

    AD-RtR/OS! (a60876)

  18. The Military Commission rules regarding coerced testimony are more permissive than the rules that apply in criminal courts. I think this is the current version of the Military Commission Rules of Evidence which includes Rule 304 “Confessions, admissions and other statesments.” Subsection (c) “Statements allegedly produced by coercion” provides (at page 9):

    (c) Statements allegedly produced by coercion. When the degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted in accordance with this section.

    (1) As to statements obtained before December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (B) the interests of justice would best be served by admission of the statement into evidence.

    (2) As to statements obtained on or after December 30, 2005, the military judge may admit the statement only if the military judge finds that (A) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; (B) the interests of justice would best be served by admission of the statement into evidence; and (C) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment.

    According to the New York Times, Ahmed Khalfan Ghailani was captured in Pakistan in 2004. He was held for 5 years, and at some point subjected to coercive interrogations that led investigators to a witness, Hussein Abebe. Abebe was not subjected to coercive interrogations and was not part of the conspiracy. (My understanding is Abebe thought he was selling TNT to Ghailani to be used in mining.) According to prosecutors, Abebe “would have testified that he had sold Mr. Ghailani the TNT used to blow up the embassy in Dar es Salaam.”

    It’s not clear to me when the coercive interrogation that led to Abebe occurred, but it could well have been prior to December 30, 2005. If so, the government would only have had to meet the lesser standard of Rule 304(c)(1) if Ghailani had been tried before a Military Commission. In that case, Abebe’s testimony might well have been admissible.

    DRJ (d43dcd)

  19. I’m with Bob and Daniel. As a jury member, you do not think the attorneys are allowed to directly state what is not the truth as the truth. I can understand the defense attorney say, “You will find him innocent”, or, “The prosecution will not be able to prove he was in Al Queda (bad enough).”

    AD-RtR/OS- I always heard it was that we had a legal system and a court of law. That not only are we not promised the truth, we’re not even promised justice. When words are picked so they seem to mean one thing but technically mean something else, that isn’t a court of truth or justice, and it shouldn’t even be law, it should be considered trickery. And someone who assists a terrorist escape just punishment by such tactics should not be rewarded as a good attorney, but should be charged with crimes against humanity themselves. Innocent people should be found innocent, guilty people should not be allowed to walk because of legal outmaneuvering.

    MD in Philly (3d3f72)

  20. Patterico,

    A further refinement of my question.

    According to my lovely wife, who is an ADA here in NYC, and based soley on the information I supplied her (as she’s in the middle of trying an important case involving some corrupt officers of the court, and prefer’s as few distractions as possible), since the Judge didn’t allow the evidence obtained by the CIA to be entered he should have also stopped the defense council from weaving the disingenuous yarn before the jury.

    Now she stipulated that it’s possible that the Judge didn’t want to appear arbitrarily high-handed with the defense counsel, and that the Federal prosecutors should have objected strenuously when the yarn began to be spun in order to give him the opportunity to stop the fairy tale.

    But again, this is based on my short discussion of it with her, so if there’s any error’s they’re probably due to my framing of the question based on what I know of the situation.

    I’m nt looking to assign responsibility to anyone; the ideological inflexibility of AG Holder and President led to this result. They are responsible…

    But my original question to you regarding your opinion on whether the defense counsel’s actions crosses an ethical line still remains.

    While you’re at it, could you tell me which site you saw the heavily redacted record of the proceedings on? Unless, of course, civilians can’t access it anyway.

    My Regards

    Bob Reed (5f2db5)

  21. Bob Reed,

    Speaking as a layperson, it’s hard for me to justify blaming the defense for this abomination. That reminds me of the O.J. trial where the defense were accused of various shenanigans and grandstanding.

    Well, maybe, but I expect that from them. The prosecution has still got to line its ducks in a row and there isn’t much that can be done about a crappy jury, post-selection.

    I agree with your comment in the main and I find your question interesting. I mean, your wife probably does have a point. I’m not saying the defense has clean hands, just that the government (like Obama with his decision of venue) has got to expect and be able to deal with that.

    Some defendants … are criminals. It’s not beyond the realm of possibility that they might hire shady counsel!

    The case your wife is working on sounds interesting. I’m glad she’s doing the prosecuting and not the defending. 😉

    Christoph (8ec277)

  22. Well it’s par for the course, as the attorneys at Wilmer, Covington, Shearman, have vouched for other detainees who have gone on to conduct terrorism; and
    then deny that their clients wre guilty, recall that
    Holder had sicced Dunham on the CIA interrogators, ultimately he had to call them off

    narciso (82637e)

  23. Quoting Marc Thiessen, a hack columnist with a current partisan job, who is not a lawyer? Weird

    All I will point out is that if you do things the right way, bad guys end up in jail:

    What’s instructive when trying to make sense of the Ghailani trial is to contrast it with the 2001 trial of four other men involved in the East Africa embassy bombings — Mohamed al-‘Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and Wadih el Hage. In that trial – also in a federal court – the defendants were each sentenced to life without parole.

    The Ghailani trial was different — not because of where he was tried, but because of what happened before he was brought to trial. After Ghailani was captured in Pakistan in 2004, he was subjected to harsh interrogation techniques at a Central Intelligence Agency black site.

    Because these techniques – which taint any confession, since coercion makes statements unreliable and inadmissible – were used, the prosecutors couldn’t use his statements. The judge also barred prosecutors from using a key witness, Hussein Abebe, who was planning to testify that he sold Ghailani the TNT used for the bombing.

    Abebe was barred because the prosecution learned about him from Ghailani — while he was being subjected to the harsh techniques. In the 2001 Embassy trial, the detainees had not been subjected to any coercive techniques, and their confessions were allowed. Especially given the difficulties the Ghailani agents and prosecutors faced, they ought to be commended for securing the 20 years to life verdict.

    Read more:

    So, torturing people turns out to be the problem here, not using the finest jurisprudence system ever devised by humans.

    timb (449046)

  24. I never tire of dishonest partisan hacks giving us a rant about partisan hacks.

    JD (fdacaf)

  25. The thing about Freedman, unlike his boss, who was caught misrepresenting the nature of the interrogation of Abu Zubeidah is he out to know better

    narciso (82637e)

  26. The problem is people falsely claiming “torture” when it didn’t happen.

    SPQR (26be8b)

  27. The most annoying part of this, SPQR,is his bureau partner, who had gone through SERE training, rebutted his assertions in the IG report, yet that part didn’t get appropriate attention, surprise, surprise

    narciso (82637e)

  28. narciso, timb screams “torture” when someone leaves the night light on too bright in the cell.

    SPQR (26be8b)

  29. Or plays music loudly. Or turns down the air conditioning. They render the term meaningless.

    JD (fdacaf)

  30. I know when they are not provided, “the confy chair,” but I say, Freedman should know better

    narciso (82637e)

  31. I enjoyed Christoph @21 again boldly not taking a position.

    daleyrocks (940075)

  32. Yes, he’s very ‘splungey’ that way, when he’s assertive about something, he’s more often than not wrong.

    narciso (82637e)

  33. Daley – it took no position, while using way too many words doing so.

    JD (fdacaf)

  34. JD – Exactly. Boldly!

    daleyrocks (940075)

  35. Patterico, you’ve persuaded me that there are good reasons to conclude that more inculpatory evidence would have been admitted had this trial been to a military commission.

    But I’m still unpersuaded that if only the inculpatory evidence which was excluded in the civilian trial could instead have been admitted in this civilian trial, there would, as a direct result, have been more counts on which the prosecutors got convictions.

    That’s possible — I can’t rule it out, certainly. But I’m inclined to agree with Andy McCarthy (here, plus here, here, here, and here) that the problem with this trial almost certainly came down to a single juror who wasn’t following the evidence and the court’s instructions along with the other jurors, rather than the exclusion of crucial evidence. That all the jurors in a military commission trial would be members of the American military is what would have been more likely to account for a different result there.

    This problem — reliance on jurors from the regular civilian jury pool in such a controversial case — will recur again and again and again, every time the Obama DoJ chooses to pursue prosecution in the civilian courts. And this problem will exist even if there was never any enhanced interrogation of the defendant or any other witness.

    All of which is to say: There are many good reasons why this case ought not to have been tried in the civilian court system, and why other similar cases ought instead to be tried to military commissions. If the Obama DoJ persists in treating our wartime enemies as if they were domestic common criminals, I think we assuredly will see trials in which genuinely crucial, genuinely outcome-dispositive evidence is indeed excluded by civilian judges.

    Beldar (85e89d)

  36. Beldar:

    Holdout jurors are always a potential problem in any trial of any charge. I don’t think that the chance of a holdout juror alone is a reason to switch the venue of a prosecution to a forum that is otherwise legally inappropriate. (I am confident that we agree on this point; I merely emphasize it for the benefit of some people who mistakenly attribute to me a desire to circumvent the law in order to win. Neither you nor I have any such desire, I am certain.)

    In other words, my analysis assumes that a military tribunal is a legally appropriate place to try Ghailani. I am not an expert in this area but it is my opinion, based on various factors, that Ghailani could legally have been tried before a tribunal — and that Obama’s decision to try him in federal court was a political statement.

    One of the major reasons that a military tribunal is more appropriate is because the rules are flexible enough to deal reasonably with the CIA’s need to question Ghailani in an aggressive manner in order to protect national security. As I argue in the post, the civilian courts have fashioned rules to deal with a very different type of interrogation, and those rules do not translate to a situation like the interrogation of Ghailani.

    By contrast, the problem of a holdout juror is more of an outcome-determinative issue. In other words, some might argue that military tribunals are better because we don’t have to deal with those holdout jurors. While this is true, I personally don’t think that is as persuasive an argument for shifting the venue. Again, prosecutors always face the possibility of a holdout juror screwing up the case, but that’s the system.

    All I am saying in this post is that, for other reasons, I don’t think that system (the system of civilian courts) was the appropriate system for this case. If we have a legally sanctioned forum that is more appropriate, that is the forum that should have been used.

    Patterico (c218bd)

  37. What becomes clear from this example which is used to argue that a commission would not have yielded
    better results, is that the whole system has been compromised, by the Levick Group, by the D’enbeaux
    reports, et al;

    narciso (82637e)

  38. “Comment by daleyrocks — 11/19/2010 @ 8:09 am”

    Why the hell should I or anyone else take a firm position on everything? It was a “comment”.

    Christoph (8ec277)

  39. Patterico (#36): You’re right, we’re in accord.

    Beldar (85e89d)

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