Absrud Lessons from the Ghailani "Terror Verdict"

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This week a Federal Court in New York convicted Ahmed Ghailani with conspiracy to destroy federal property, in connection with Al Qaeda terrorist bombing in 1998 in Tanzania and Kenya. He was acquitted of more than 280 other charges relating to the attacks, including murder charges. So the debate has erupted as to whether this constitutes a failure of the attempt to try terrorists in civil courts, or whether it is a vindication of the decision to avoid trying him before the Military Commissions constituted in Guantanamo Bay.

Much has been written, some on the earlier decisions to allow the trial to proceed notwithstanding the torture of the accused and the long delay in trying him; some of it sound analysis of the trial strategies that left the entire issue of torture irrelevant; and much of it ranting about the injustice of the acquittals, and the clear and obvious need to abandon the criminal justice system as a means of dealing with terrorists. There is no need to wade through all the arguments yet again here. But there are some simple thoughts that ought to be expressed in the midst of this debate, simply to ensure that the waves of outrage at the acquittals do not carry the day.

At the core of the argument that the acquittals constituted a travesty of justice, is the idea that any and all evidence should have been relied upon, regardless of whether it had been obtained by torture, no matter whether it was hearsay, or however else it might offend the fundamental principles of due process and our ideas about a fair trial. In essence we should adopt methods that betray our foundational values in order to achieve retribution. This of course would be no justice. It would be vengeance.

And what of the torture? It is so common in this post 9/11 era, when the prior law-breaking of the government contributes to a less than ideal outcome, to attack those who either followed the law or adhered to our values in the final result, rather than acknowledge that the initial sin was the root cause of failure. So here it is the refusal by the court to accept evidence obtained through torture, rather than the initial decision to torture that is to blame. When the unconstitutional wire-tapping of the Bush administration was first disclosed, the right wing attacked The New York Times for carrying the story, rather than the government for its violation of fundamental constitutional rights.

Where does all this lead? Not towards the light at the mouth of Plato's cave, that is for sure. We are descending deeper into the darkness as we proceed to dismantle the framework of the legal and moral system that underpins our democratic system. How else can one explain it, when a highly respected Harvard Law professor, and former Director of the Office of Legal Counsel in the Department of Justice, says that the lesson of the Ghailani trial was not that military commission trials would have been better -- but that in fact we ought not to provide terrorist suspects with a trial at all, but just detain them indefinitely. The unthinkable has become commonplace. -- Gamma.

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