Opposition to the rule of law

Those claiming that terrorists don't belong in court -- because some might win -- reject basic American justice

Published October 7, 2010 12:08PM (EDT)

As part of the multi-tiered justice system it created for War on Terror detainees -- whereby some are sent to real courts, some are placed before newly concocted military commissions, and others are just held indefinitely without any charges, all based on the unfettered discretion of the Government -- the Obama DOJ last June brought Ahmed Ghailani, accused of bombing two East African embassies in 1998, from Guantanamo to New York to stand trial in federal court.  Ghailani had been detained by the U.S. without any charges for the past six years, including two years in a secret CIA "black site" beyond the reach even of international human rights monitors.  At the time they brought him to the U.S. to stand trial, the Obama DOJ believed that the evidence against Ghailani was so overwhelming that a conviction would be close to certain, thus showcasing the efficacy of trying accused Terrorists in federal court.

But that plan just ran into a roadblock called "the rule of law."  Judge Lewis Kaplan of the Southern District of New York yesterday barred the testimony of the Government's key witness -- the individual who says he sold Ghailani the TNT used to blow up the embassies -- because the Government only learned of that witness as a result of torturing Ghailani.  Kaplan -- who previously rejected Ghailani's motion to have the indictment dismissed on the ground that his right to a speedy trial had been violated and that the torture he suffered compelled dismissal -- relied on centuries worth of clear legal precedent barring the Government from benefiting from information it obtains via coercion and abuse of the defendant.  In the 1935 case Brown v. Mississippi, the Supreme Court barred confessions made by black defendants that were beaten out of them by Mississippi sheriffs, explaining that the use of coerced statements has been "the curse of all countries" (emphasis added):

It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.

That, and countless other judicial precedents, is what Judge Kaplan applied to bar the Government from benefiting from its abusive treatment of Ghailani, explaining that the rule of law, if it is to be meaningful, must apply to everyone, even to the Scariest Terrorists (click on image to enlarge):

The Obama DOJ, as always, was eager to avoid any public airing of what was actually done to detainees, and thus did not contest, but rather conceded for purposes of the Motion, that Ghailani was abused during his detention at the CIA black site, arguing instead that (a) learning of the witness' name was too attenuated to the torture to warrant barring the witness, and (b) they had grounds for discovering the witness independent of the abuse.  Kaplan rejected both claims, and gave the Government several days to re-work its trial strategy (or to appeal) now that its key witness is banned.

All of this, needless to say, is being depicted from predictable corners as proof that Terrorists do not belong in real courts.  National Review's Andy McCarthy complained that "civilian due-process standards are crippling the government’s case" and that "we are intentionally tying our hands behind our backs and running an unnecessarily high risk of acquittal in a case involving a war criminal."  Wisconsin Law Professor Ann Althouse thundered:  "I want to hear President Obama explain his decision and the judge's decision to the American people."  Politico announced that Judge Kaplan's ruling "could deal a major setback to those who favor civilian criminal trials for Guantanamo Bay prisoners, including those suspected in the September 11 attacks."  McCarthy lamented:  "the slam dunk has become a horse race, one the government could actually lose."

Consider the rationale driving these who object to real trials:  it's vital that the Government be able to use information that it obtained by torturing people.   It's equally vital that the Government be absolutely assured that it will obtain a conviction against anyone it accuses of being a Terrorist.  Because this is a "war," we can waive our usual rules of justice.  Any proceeding which imposes limits on the Government's ability to profit from its torture, or which introduces any uncertainty as to the verdict, is proven to be both inappropriate and dangerous.  We can and should simply imprison whomever we want in the War on Terror without the need for any charges, but if we do charge and try them, it should only be in newly invented tribunals (i.e., military commissions) where traditional due process is severely reduced and the rules are designed to ensure a guilty verdict, even it means allowing torture-obtained evidence. 

People who think this way, by definition, simply do not believe in the rule of law.  A system that guarantees guilty verdicts is not one that operates under the rule of law.  Those are called "show trials" -- at least they used to be when other countries did that.  And the demand that torture-obtained evidence be admissible not only removes one from adherence to the rule of law, but from the civilized world as well.  The whole point of a "justice system" is that there are rules that are well-established and which apply equally to everyone.  Although the requirement that the Government adhere to those rules will inevitably mean that some very, very bad people are acquitted -- including mass murderers, child rapists, and even Terrorists -- that's the price we've always been willing to pay to live under what we call "the rule of law" and a "justice system."  Those pointing to Judge Kaplan's ruling as proof that Terrorists should not be tried in a real court -- all because he applied centuries-old legal principles to the Government -- believe in none of that, by definition.

Then again, this whole spectacle of bringing Ghaliani to New York is quite like a show trial anyway.  The Obama DOJ only deigned to allow Ghaliani a trial because it was convinced it was guaranteed of a conviction; had it not been so convinced, they would have simply sent him to a military commission or held him without charges of any kind, as they're doing to multiple other detainees against whom they don't believe they can win in a real court.  Beyond that, the administration has already asserted what it calls "post-acquittal detention power":  namely, the power to continue imprisoning anyone as an "enemy combatant" under the law of war even if they charge that person with crimes and lose in court.   Indeed, Judge Kaplan -- seemingly eager to assure the public that he wasn't endangering them with his ruling -- cited this claimed power in his decision:

So even if Ghaliani is acquitted, it's almost certain that we'll just keep imprisoning him -- effectively forever -- without any charges at all.  The Obama administration deserves some credit for bringing him to trial in the first place, but it's very hard to know what the supposed benefit is -- or how it vindicates the rule of law -- if it is a classic "show trial":  if he's convicted, we'll all celebrate how Justice has been vindicated, but if he's acquitted on all charges, we'll just keep him in a cage forever anyway, under the theory the the President possesses "post-acquittal detention power."

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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