Absrud Lessons from the Ghailani "Terror Verdict"


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.

Harper stands by his man


Stephen Harper, Canada's smug, geeky Prime Minister, has not demonstrated a great capacity for loyalty recently. Disagree with his policies or make him look bad and he doesn't hesitate to throw you over the side. But it is impressive to see him stand behind William Elliott, the first civilian head of the RCMP who has come under fire for his brusque and ride management style. The RCMP has serious cultural and leadership problems, it would be a shame to see the changes that need to be made derailed for insubstantial reasons. Harper may take some political shots for this but he deserves a rare kudos for standing by his man. - Beta

Ground Zero, Islamophobia in America, and the Future of the World


There is probably little to say that hasn't already been said in the so-called debate over the Muslim community center to be built near Ground Zero in New York City. Yet unlike so many other storms in a teacup in the blogesphere, this issue is important - and so lending our voice to maelstrom seems like something of a responsibility.

It is important for two principle reasons. The first has to do with the nature of America, and the direction it is going to take. The second is about the nature of the world, and the direction it is going to take. The two are of course related.

Let us start with the nature of the world.  As others have argued at much greater length, and with considerable eloquence, the natavist attack on Muslims over the proposed community center is a propaganda bonanza for the extreme radical Islamic fundamentalists. It plays to their narrative of a holy war between Islam and the West, in which Muslims in America are less than second class citizens with only the illusion of rights and a legitimate place in society. Even without Al Qaeda or anyone else having to raise a finger, the poisonous invective being heaped on Islam by the anti-Mosque crowd is likely to create anger in all Muslims, and to tip some into thinking about seeking out radical movements. To the extent that the anti-Mosque cabal is successful, the greater the potential damage will be.

That in turn, of course, has an impact on the nature of the world, in the sense that the more the so-called "global war on terrorism" morphs into a decades-long conflict between Western anti-terrorist forces and increasingly radicalized Muslim extremists, homegrown and all over the world, the more we risk sliding into a truly new dominant paradigm that will make the Cold War look downright tame and attractive by comparison. We keep turning the screw, increasing the downward spiral, militarizing and radicalizing, responding to terrorism and its threat in ways that play precisely to the terrorists' strategic objectives, and contrary to our long term interests.

The Alternative List


Taste is a funny thing at the best of times, lack of taste even funnier. Not surprisingly, Gamma and I disagree on what makes the top ten. I don't quibble with Bridge over the River Kwai, Das Boot and Apocalypse Now (not the undisciplined Redux reboot). I recognise The Thin Red Line, Dr. Stranglelove, The Deer Hunter and Merry Christmas Mr. Lawrence for being good movies, even great movies but they wouldn't make my list. They lack something. Patton is terribly over-rated. Henry V doesn't cut it. And Ghandi ain't a war movie no matter how hard you twist it.

I would nominate the following for consideration for elevation to the list of the all-time great war movies:

The Americanization of Emily. This is movie that his slipped off our cultural radar. It is funny, charming and clever. The legendary Paddy Chayefsky's script demonstrates how satire can be subtle and effective, a lesson that Dr. Strangelove might learn. In Emily, James Garner plays a scam artist and self-procalimed coward who revels in his corrupt lifestyle. He falls in love with Julie Andrews, a young war widow and gets caught up in mentally unstable Admiral's scheme to keep the Navy relevant after the war to make the first dead man on Omaha Beach a sailor.

 Battleground. Despite the black and white this is one of the first modern war movies. It presents a realistic account of the 101st Airborne during the Seige of Bastogne. Robert Pirosh, who was a gag writer for the Marx brothers before serving in the Battle of the Bulge himself, wrote a movie that showed a culturally diverse group of American soldiers scared, scheming to go home, cold, critical of authority and only occasionally brave.

 Three Kings. How soon we forget... remember the last time we left Iraq? Set in the savagery of the failed Sunni uprising, an "Iraqi ass map" leads a group of soldiers to a cache of hidden gold. Again, David O. Russel, with a great performance from George Clooney shows that satire does not have to be over the top to be funny.

Stalag 17. Written by Donald Bevan and Edmund Trzcinski and based on their own experiences as prisoners of war, it is a story that carries particular weight in these paranoid times. Billy Wilder coaxes a brilliant performance from William Holden as Sefton, a cynical, scheming prisoner who always has an angle or odds on anything and everything. He is disliked but necessary to life in the camp. When circumstances reveal that one of the prisoners is a traitor, suspicion falls on Sefton and he is reviled and threatened and must uncover the real traitor before its too late.


 Boys in Company C. Released in 1978 when the wounds of Vietnam were still festering, this movie presented the war in all its unpleasant, ambivalent, gory detail. This is a movie that was overshadowed by the next generation of Vietnam war movies but stands up favourably to them.

 M*A*S*H  Robert Altman's chaotic corralling of the acting talents of Donald Sutherland, Robert Duvall, Elliott Gould and Sally Kellerman produced one of the funniest movies of all time. M*A*S*H is the blackest of black comedies about war. doctors, nurses and football and is fresh and funny with every viewing.

The Top 10 War Movies of All Time


Last year we had a debate on the top ten law movies of all time. Despite the sniping, we actually had a fair amount of agreement. So this year, we just offer a straight up list, with commentary but no debate. At the end, we offer our pick for the worst ever for good measure.

But what are the criteria? There are different kinds of war movies, some large in scale, others intimate, some anti-war others glorifying it - how to decide? Our list includes some of all of these, and our approach has been simply to select great movies that have as their subject various aspects of war. It was a very difficult task whittling the list down to 10, and many fantastic movies were left on the cutting room floor.

No. 1. - The Thin Red Line: A surprising choice for many no doubt, but this is a movie that at once captures the horror, the insanity, and pointlessness of war, while at the same time managing to beautifully and subtly explore the deeper philosophical questions of whether war is an aberration of nature, or just another manifestation of it. A brilliant movie, nominated for a best-picture Oscar, which ultimately lost to one of our pics for worst war movies ever.

No. 2. - Apocalypse Now: This really doesn't need much explanation. The brilliant remake of Conrad's Heart of Darkness continues to be a classic, long after the Vietnam war obsession has faded. We'll leave aside the debate over which is better, the original, or Redux.

No. 3. - Dr. Strangelove: Stanley Kubrick's classic Cold War movie, in which Peter Sellers plays three different characters, and George C. Scott (see Patton below), plays the hard-drinking, hard-loving general ready for war with the Ruskies. The movie is a brilliant satire on the logic behind nuclear deterrence and mutual assured destruction, still very relevant today.

Rights and Gay Marriage


As everyone in North America knows by now, a federal district court in California struck down the law banning gay marriage (popularly known as Proposition 8). This is surely to be hailed as an important blow for human rights and the rule of law in the United States, though of course the decision has already been appealed, and will no doubt end in the Supreme Court. Less well known, is that on Thursday the Supreme Court in Mexico also upheld the constitutionality of same-sex marriage in an 8-2 decision. Mexico is the third country, after Canada and Argentina, in the Americas to fully recognize same-sex marriage.

Yet amongst all the debate in the United States there continues to be confusion over the nature of the core issues invoked by the same-sex marriage cases. The New York Times editorial the next day reflected it perfectly, passionately asserting that "marriage is a constitutional right," while inside the paper was analysis of whether the political right to marry constituted a "civil right." Meanwhile on the right there are shrill screams that the Constitution contains no "right to marry," and that this is just more judicial re-writing of the constitution (continued....).

Canada and the U.S. Get Involved in U.A.E. / RIM Negotiation


Earlier this week, I called for western governments to involve themselves in the U.A.E. dispute. When The Radix talks, governments listen.

International Rule of Law Shows Some Teeth


There was a time in this fair land when beating an extradition beef was not so difficult. You could attack the case against you and get the moral high ground.  In recent years that has changed and, if you are in Canada and a foreign government wants you, it's just a matter of time. Nothing short of the death penalty or a shocking abuse of process is required. It doesn't matter how weak the case or how corrupt the government.

In this context, it is interesting to see Justice Christopher Speyer of the Ontario Superior Court of Justice quash the extradition request for Abdullah Khadr. Justice Speyer ruled that the illegal arrest and detention and interrogation of Khadr, a violation of international law,  required the extraordinary remedy of refusing the American request to extradite him.

Khadr is unquestionably a terrorist and member of Al Qaeda. The Americans lose an opportunity to bring him to justice because of their own complete disregard for justice and the rule of law. It ain't pretty but that is how these things are supposed to work. It is the golden thread that runs through societies founded on, and concerned with preserving, the rule of law. And the decision is made by an independent arbiter. The check on their illegal behaviour is public. And, get this, it is made in a duly constituted and constitutionally sound court of law.

Such shocking innovation in the great white north. - Beta


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