Tuesday, November 23, 2010

Feds Up, Ho's Down: Ahmed Ghailani's Conviction and the Military Tribunal Myth

Let's get one thing straight right off the bat - If you are a true American patriot who cares about bringing terrorists to justice, then Military Tribunals are NOT the way to go.  Last week, the first Guantánamo Bay detainee to be tried in federal court under the Obama administration, Ahmed Ghailani, was convicted of Conspiracy to blow up U.S. buildings in the 1998 African Embassy bombings - a crime that caries a 20-years-to-life sentence. (We'll come back to the Conspiracy crime later - for now, just know that the crime of conspiracy is where two or more people agree to commit a crime in the future).  However, because Ghailani was acquitted by the federal jury on the 284 counts of murder charged against him, conservative Military Tribunal advocates are calling the 20-year-to-life conviction a "failure."  It didn't take long for folks like Peter King (R - NY), Liz Cheney and Senate Minority Leader Mitch McConnell to start running off at the mouth with the usual talking points.  McConnell, who likes to characterize his inner thoughts as "the American people," had this to say:
“Most Americans wondered why we would even take the chance,” McConnell said today. “And now they’re wondering when the administration will admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system that was established for this very purpose at the secure facility at Guantanamo Bay, or detained indefinitely, if they cannot be tried without jeopardizing national security. When it comes to terrorism, we should err on the side of protecting the American people.” [substitute "Mitch McConnell" for "The American People/Most Americans" to get the true translation]
So why didn't Ghailani get convicted on the murder charges?  Short answer: because the federal prosecutors did not present any evidence on the murder charges.   Of course, this begs the follow up question, well why didn't they? We presented a more in depth break down HERE but the cliff notes version is this: the murder evidence was inadmissible because it was obtained from illegal torture. (note: the Feds conceded this point)

The pro-enhanced interrogation technique torture crowd, who all seem to be suffering from the same preconceived notion that anything goes in Military Tribunals, pointed to this admissibility problem as proof positive that if this trial had happened in a Military Tribunal things would have been different.   ALL evidence is admissible in a Military Tribunal...or so the argument goes.  If you let the Republicans tell it, in Military Tribunals, terrorists can't "lawyer up" because in Military Tribunals there are NO Constitutional Rights. Heck, there aren't even any lawyers.  It's just a room full of military bad-asses with big guns and itchy trigger fingers. To put terrorists on trial in Federal Courts (aka "Civilian Courts") is reckless, un-American and does not keep us safe.  And if you believe any of that, I have some land to sell you in Florida.

The fact that these myths are still being sold as viable arguments on all the cable news shows lets us further know that the main stream media is either too lazy or too inept at dealing in reality on the Military Tribunal issue.  On this blog, however, we like to deal in facts (lord forbid) so, if you don't mind, let's break this thing down, ok?


Terrorists don't get to "lawyer up" in Military Tribunals.
Uhhhh...dude, what are you talking about?  Just like in "civilian" court, every "enemy combatant" gets a lawyer in a Military Tribunal.  Per the Military Tribunal rules "Under R.M.C.109 and 506, it is the responsibility of the Chief Defense Counsel (CDC) to provide representation for an accused at all times by detailing a qualified defense counsel."  In America, (which includes the American military) when you get accused of a crime, you get a lawyer.  That's how we roll.   If you don't like it then take it up with the Founding Fathers. 

ALL evidence is admissible in a Military Tribunal.
Again, not true. Military Tribunals will not allow certain evidence just like "civilian" courts.  The two systems are, for the most part, fairly similar to each other when it comes to the admissibility of evidence.  For example, neither a Military Tribunal nor a "civilian" court will allow a private discussion that you had with your lawyer to be entered into evidence.  See Manual for Military Commissions Rule 701(k).  So again, let's stop all this crazy talk as if anything goes in a Military Tribunal because it doesn't.

There are NO Constitutional Rights Allowed in Military Tribunals.
Where do they get this stuff?  Look, let's get one thing straight - ANYTHING that is a part of the U.S. Government (eg. Congress, President Obama, the U.S. Army, the CIA, the Post Office, etc.) is subject to the U.S. Constitution.  OK?  Ain't no mountain high enough and ain't no valley low enough to keep the Constitution from getting to any branch of the U.S. Government, no matter where in the world they happen to be.  The failure to recognize this fact is what led the Bush Administration to mistakenly open Gitmo in Cuba in the first place; they thought that by placing the prison outside the geographical borders of the U.S. that the Constitution would no longer apply to the U.S. military there.  Even a conservative-dominated Supreme Court had to kindly remind Bush & Cheney that they were WRONG on that point.  See Boumediene v. Bush, 553 U.S. 723 (2008).

To Put Terrorists on Trial in Federal Courts (aka "Civilian Courts") is Reckless, Un-American and Does Not Keep Us Safe.
Time for a reality check.  Contrary to the misinformed talking points, Federal Courts have been putting terrorists away behind bars for a long time - and at a very high success rate to boot.  Since 9/11, Military Tribunals have convicted a grand total of THREE (3) terrorists.  Two of those Three - David Hicks and Salim Ahmed Hamdan - have been released and are living free in Australia and Yemen, respectively.  "Civilian" courts, on the other hand, have convicted and locked up at least one hundred ninety (190) terrorists on major terrorist crimes since 9/11 (including your boy Ghailani here), and have convicted and imprisoned another 523 on terrorism-related charges that include lesser offenses. See New York University Center for Law and Security, "Terrorist Trial Report Card." 

and last but not least...


Ahmed Ghailani Would Have Been Convicted of Murder in a Military Tribunal.
Don't bet on it.  Again, the critics of the Ghailani case are claiming that Federal/Civilian courts have annoying rules which exclude evidence that was obtained from torture, unlike a Military Tribunal which doesn't care where the evidence comes from.  Oh really?  You sure about that?   Check out the Military Tribunal case of Mohamed Jawad.  Jawad is an Afghan teenager who was on trial in a Military Tribunal in 2008 for attempted murder.  This kid, apparently working on his junior terrorist merit badge, threw a grenade at a military jeep in Kabul in 2002. The Military Judge who heard his case, Col. Stephen Henley, excluded incriminating statements that Jawad made because he made those statements after he was beaten and his family threatened while he was in custody. As a result, the Military Tribunal dropped all charges against Jawad and the United States government sent Mr. Jawad home to Afghanistan on our dime.  How's that for Military Tribunal justice?

Oh yeah, getting back to that Conspiracy charge we mentioned up above at the beginning, there's an issue there that's being overlooked by the pundits.  Without getting into too much legal jargon, the problem is that the crime of  Conspiracy may not actually count as a "war crime."  See Hamdan v. Rumsfel, 548 U.S. 557 (2006) (rejecting the idea that military commissions can prosecute conspiracy charges). Why is that a problem?  The answer is straight forward: if it's not a "war crime" then a Military Tribunal can't take the case.


Bottom line, folks, Military Tribunals have been used in America since the 1800's.  There's a time and place for everything, and Military Tribunals certainly fit within that mantra, however, they were never intended to be used as a convenient bypass to the Constitution simply because we want to feel safe.
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