Grave Error

Today, Glenn Greenwald describes how the recent criminal conviction in civilian court of accused terrorist Ghailani, despite cries to the contrary from the Right, has proven that our justice system works. Not only does this case prove that our civilian justice system is both the best forum for trying terrorists and fully capable of doing so, it also highlights the underlying cynicism behind Bush’s false bravado.

Let me begin with a few basic facts about the case that the press, out of its love for sensationalism, largely ignores:

• Ghailani has been convicted of conspiracy and will spend a long, long time in jail. The idea that somehow our civilian courts have given him a free ride is blatantly false. Simply, he was found guilty of only one of the accounts against him. In other words, he has not been fully absolved of all wrong doing and will do serious time.
• The military tribunals would not necessarily have favored his prosecution. The same evidence that was excluded from trial in the civilian court would most likely have been excluded in the military forum, as the “current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do.”
• Furthermore, civilian courts to date have a better track record at prosecuting accused terrorists than the military tribunals do, and
• The whole problem of tainted evidence would never have become an issue if President Bush and his men had not approved torture in the first place. In other words, these impediments to trying terror suspects in both military and civilian courts are the direct result of the former president’s policies. So if the argument is that Ghailani was acquitted on the other counts because of evidentiary rules, then in legalese, “but for” the Bush White House, Ghailiani would have been convicted on all accounts. In other words, the Bush Cheney policies were the direct cause of Ghailani’s acquittal on more than 280 charges.

So take a look at that last point in view of Mr. Bush’s “I gave the order and would do it again” boasting. Mr. Bush and his Republicans have a fondness for “personal responsibility”, so shouldn’t Mr. Bush and company then recognize their responsibility in light of both the acquittal of Ghailani and the difficulties that the standing president now has in trying the remaining Guantanamo detainees? “But for” the torture and illegal detention – all proud Bush policies — these “evidentiary” and constitutional issues would certainly not be hindering due process, the rule of law, and bringing to justice those who have tried to reek havoc on our nation.

Finally, let’s revisit Mr. Bush’s courage under fire:

• When American soldiers were accused of torture at Abu Ghraib, did Mr. Bush stand up for them, say he gave the order to protect American lives and would personally accept the consequences? No, he scapegoated the few “bad apples”.
• When CIA operatives suddenly realized that they could all go to jail for torture, did Mr. Bush stand up and say, don’t burn the evidence? I gave the order, I will take the heat? No, he let it burn, like a criminal fleeing the scene of a crime (but with the presidential presumption of innocence).
• And when the White House realized that it had to do damage control before people learned the truth about torture, did the White House courageously tell the truth about waterboarding? No, it leaked that waterboarding had been administered twice and in each case the “worst or the worst” spilled the beans in a matter of seconds. What a great, effective, efficient and necessary tool at its disposal, we all thought. Then, later we learned the whole truth that the two detainees had been waterboarded over one hundred times each. So much for the efficacy of waterboarding.

A tough guy who takes responsibility for his actions and accepts the consequences would certainly then accept either of the following sacrifices, lest he risk nothing at all:

• Request a full and transparent investigation into the black sites, torture regime, and other extra-judicial practices, making the argument that he took a risk in favor of the country and is willing to accept the outcome of the investigation, even if that means criminal charges (and a sympathetic presidential pardon, a la Ford-Nixon); or
• Accept that by torturing terror suspects to gain invaluable information in the short term he took a risk that the suspects would very well be later released due to a lack of admissible evidence.

But that’s not how it went down, was it? The tough guy who lied and leaked and scapegoated, now brags once the coast is clear that he did something brave and would do it again (like the rich kid who gets away with drinking and driving). And when the moment of truth finally comes – far off his watch and in the safety of his presidential library with the presidential “stay out of jail” card in hand – all of the ex-president’s men now tell us that somehow – regardless of the fact that the difficulty in convicting terror suspects in both military tribunals and civilians courts is the direct result of the Bush White House’s actions –Obama’s failure to convict on all charges is making the country less safe and as a result Guantanamo should definitely not be closed (ignoring the multiplier effect of hindering future prosecutions).

But then again, these are the same people who insist that we must return to the pre-crisis status quo and follow the same exact economic policies that got us into this situation in the first place. Feed the cancer with another cigarette.

UPDATE: Today’s (November 19, 2010) New York Times editorial reaches the same conclusion:

The problem was never the choice of a court. The 12 civilian jurors were not too weak-minded, as Mr. King seems to think. The judge was not coddling terrorists. He was respecting the Constitution and the law.

The problem with this case was President George W. Bush’s authorizing the illegal detention, abuse and torture of detainees. Susan Hirsch, whose husband was killed in the Tanzania attack, understood that. “I can’t help but feel that the evidence in the case would have been stronger had Ghailani been brought to trial when he was captured in 2004,” she said.

And in an op-ed by Morris Davis, former chief prosecutor for the military commissions at Guantánamo Bay, Cuba, Davis describes why the assertions about the efficacy of military commissions being made by certain Republicans are baseless and erroneous. Specifically he notes the present track record of the military commissions:

In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.

Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.

If Liz Cheney and the rest of her clan want to ignore the consequences that daddy’s policies have had and will continue to have on prosecuting detainees, then instead of pretending we are something we are not, she should just come out and say that the U.S. is entitled to be a rogue, human rights abusing nation whenever it feels like it. That way, we don’t even need to get into these discussions in the first place.