In a stunning decision, Southern District of New York Judge Lewis Kaplan did something the executive branch didn’t want him to do. His job. As the trial of Ahmed Khalfan Ghailani was scheduled to begin, Judge Kaplan ruled on the pending motion, challenging the use of torture to gain evidence against Ghailani, as well as the good will of America to compel a guy in Tanzania to come to New York to testify. And what a ruling it was.
But just as the trial was to begin on Wednesday, Judge Kaplan ruled that he would not allow the witness to testify. He noted that the government had acknowledged that it had identified and located the witness through interrogation of Mr. Ghailani when he was earlier held in a secret overseas jail run by the Central Intelligence Agency. His lawyers have said he was tortured there.
Judge Kaplan said he was “acutely aware of the perilous nature of the world in which we live.”
“But the Constitution is the rock upon which our nation rests,” he went on. “We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”
Remove the whole terrorism overlay and this decision was a no-brainer, violating every precept we can think of plus a few that never even dawned on us. But then, removing the whole terrorism overlay and we have to step back a decade, Back before “9/11 changed everything,” and “we live in a dangerous world,” and “mission accomplished.” Back to a time when the freedom for which American men and women died was worth preserving.
Speaking in Washington, Mr. Holder seemed to play down the ruling’s significance.
“We are talking about one ruling, in one case by one judge,” Mr. Holder said.
“I think the true test is, ultimately, how are these cases resolved? What happens?” he continued, adding, “Can they be successfully resolved from the government’s perspective?”
Yet again, E.B. White’s admonition comes into play.
Of course. Justice was obstructed along with everything else. The purpose of the executive branch is to obstruct.
You can’t blame AG Holder for doing his job, I suppose, and his job is to convict the bad guys. It’s Judge Kaplan’s job to force adherence to the Constitution, even when that gets in the way of convicting the bad guys. Judge Kaplan did his job.
This isn’t the end of the trial, or the end of some monumental issues that strain the fabric of freedom. In fact, an even bigger issue looms in light of this decision.
The judge said he felt it was appropriate to emphasize that the trial was still proceeding, and that if Mr. Ghailani were convicted he faced the possibility of life imprisonment.
He added that Mr. Ghailani’s status of “enemy combatant” probably would permit his detention as something akin “to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”
How does one determine, when a person is denominated an “enemy combatant,” that hostilities with such amorphous groups have ended? Will there be a treaty signed by bin Laden on the deck of an aircraft carrier? As far as I can tell, there’s no method to accomplish such a goal, neither a sovereign to negotiate with or a leader who actually controls a clear territory. Hostilities with shadows never quite reach a conclusion. There can be “enemy combatants” forever.
The government says that this witness is critical to its case against Ghailani. Should the trial commence, the truth of this claim will be seen. If accurate, then there stands a good chance that Ghailani will be acquitted. That means the screws will be put to Judge Kaplan after a two-word verdict, when he gets to wish the defendant a happy life or order him back into custody.
Talk about a dilemma, as there is no provision in our Constitution to try a man for a crime, then detain him in perpetuity for being acquitted. The same Constitution that Judge Kaplan upholds here is the one he will have to confront should Ghailani’s jury say that the government hasn’t proven he’s a terrorist, that he’s not an “enemy combatant” as far as a jury in a court in the United State of America is concerned.
Before we reach that crossroad, there’s a trial to be had. It gives everyone involved a chance to consider the dilemmas that arise when the executive branch’s job is to obstruct justice and the judicial branch’s job is to uphold the Constitution.
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“How does one determine, when a person is denominated an “enemy combatant,” that hostilities with such amorphous groups have ended? Will there be a treaty signed by bin Laden on the deck of an aircraft carrier? As far as I can tell, there’s no method to accomplish such a goal, neither a sovereign to negotiate with or a leader who actually controls a clear territory. Hostilities with shadows never quite reach a conclusion. There can be “enemy combatants” forever.”
Betraying the Rumsfeld inside of me, this strikes me as more of their problem to figure out.
Also, your whole post supposed that 12 American jurors are going to give this guy something approaching a fair trial. Just as reason, presumptions of innocence and a requirement of competent evidence seem to fly out the window when someone alleges child molest, I have to imagine it will be hard to find 12 people who aren’t terrified witless by a middle eastern man standing trial and a gleaming AUSA saying “terrorist.” I wouldn’t want to fuck that up if I were on the jury.
Which “their,” the terrorists, the judge or the executive branch?
That’s because you are a cynic. I believe in the jury, our criminal justice system and the American way of life. Love it or leave it.
I hope Holder’s idiotic, Pravdaesque quote here finally makes it clear that this administration and this Justice Department is no less an enemy of civil liberties than any of his fellow losers that preceded him.
Good for Judge Kaplan. This at least increases his chances for a fair trial, even though it may not guarantee it.
I just noted your comment about not blaming Eric Holder for “doing his job.” You wrongly stated his theoretical job, to seek justice, not convict the bad guys (implicitly, by any means necessary including illegal ones). Were you being sarcastic? He’s nothing but a proven scumbag.
You need to read the links, referring back to E.B. White’s op-ed about G.Gordon Liddy from 1973, to understand. That’s why I put them in.
OK. Meant to read them. I figured I was missing something since I agree with you about 99.99999 percent of the time, Scott. Thanks.
I just loved the E.B. White op-ed so much that I plan to use it as often as possible. Be prepared.
The terrorists.
These here culirs don’t run.
I just read it and was about to write exactly the same comment as yours. It is truly a keeper.
This article uses the term “torture” but does not describe what kind of torture was used. I say this because of the arguments made for and against “water boarding” of enemy combatants and some people saying that water boarding was torture. Personally, I don’t consider “water boarding” to be torture.
Then there is the whole issue of enemy combatants. We are living in a different world than we lived in during WW2. We are in a real war with Muslim Terrorists. We didn’t start the war but after 9-11, we could no longer deny that we are in a war that is very real.
If we were fighting an enemy like Germany in WW2 and we captured a German solder (an enemy combatant), we would not arrest him and have any kind of trial. He would be questioned and then sent to a prisoner of war camp until the war was over.
That is exactly what should happen to enemy combatants that we capture now. The other thing that would have happened during WW2 is that if an enemy combatant was captured that was not in uniform, he would be questioned and then executed as a spy, without a trial.
What some people want to pretend today is that we are not at war and that enemy combatants are suspected criminals that should have all the rights of an American Citizen that has been suspected of committing a crime.
That is simply not the case! We are at war, and if influential people, including lawyers, don’t quit pretending that we are not at war; we are in grave danger of losing the war!
Thanks for demonstrating, yet again, my proposition that there is no such thing as “common sense.”