The Ghailani Trial: Justice Served

Commentary

The Ghailani Trial: Justice Served

November 24, 2010 01:14:09 am

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JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England Law Boston say that the Ghailani trial demonstrated that, even without evidence obtained from questionable interrogation techniques used on terrorism suspects, the government can make and prove its case….

Last week, a federal jury in New York acquitted Ahmed Ghailani of 279 terrorism-related charges. The jury also convicted him of one charge of conspiracy to destroy US Government buildings and property, for which he will serve a sentence of no less than 20 years. That verdict has reignited the debate over whether terrorism suspects should be tried in military commissions or in federal district courts.

Since September 11, the vast majority of terrorism trials have been held in federal court and the government has enjoyed an overwhelming conviction rate. But at least one aspect of Ghailani’s trial was unique and raises issues not present in the other trials to date: he is the first suspect to be tried in federal court after being taken into custody in Pakistan and transported to a number of CIA “Black Sites” before ending up at Guantanamo. While in the custody and control of the CIA and the US military, Ghailani was subjected to harsh interrogation techniques. Because his confessions came as a result of these interrogations, the government did not offer those statements into evidence at his trial. In addition, the judge in the case excluded the testimony of a key witness because the government only came to know about that witness as a result of the coercive interrogations of Ghailani.

Those critics who oppose trying terrorism suspects in federal court will seek to bolster their argument by pointing to the suppression of this evidence as reason for Ghailani’s acquittal on all but one charge. The core of this argument is that we cannot try terrorism cases in federal court because we cannot afford the risk of acquittal, even when the government’s case is built upon evidence obtained through legally questionable methods. All of this is in support of the contention that these cases are inherently different than typical criminal cases because we are at war with these terrorists and we should be using a war-fighting paradigm, including military commissions, to combat this threat. But, as the government’s overwhelming conviction rate in other post-September 11 terrorism trials demonstrates, there is nothing about these cases that makes them inherently unsuitable for trial in federal court.

In fact, the government has already tried many of Ghailani’s co-conspirators in federal court and they are now all serving life sentences in maximum-security prisons. What made Ghailani’s case particularly challenging was not the crimes with which the government charged him, but how the government chose to treat Ghailani after he was apprehended in Pakistan. Because the CIA and military interrogators subjected him to years of mistreatment, the government tainted its own evidence. If we had not used questionable interrogation techniques on Ghailani, his confessions would not have been suppressed and a key witness would have been permitted to testify in his trial. Accordingly, critics of federal court trials are reduced to arguing that we need to try Ghailani and others like him in military commissions because, due to our own mistreatment of these suspects, it has become more difficult to obtain convictions in federal court.

At the end of the day, we need to ask ourselves what it is the United States stands for. If we simply want trials to confirm what we already believe to be true – to guarantee convictions – then we are headed down a road unfamiliar to the way justice traditionally has been administered in the United States. Here, the purpose of a trial has always been to put the government to its proof and to demonstrate beyond reasonable doubt that a particular defendant deserves our worst punishments. American leaders after World War II knew this and the trials in Nuremberg proved that, in the midst of the worst atrocities, justice could prevail. Pre-ordained judgments are not justice, as both our enemies and our allies in the war on terror know.

So it is important to note that, in the Ghailani trial, justice was done. The jury found the defendant guilty of conspiracy and he will serve a long sentence of at least a generation in prison and possibly life. In no sense could the trial or verdict be considered a failure. To the contrary, it demonstrates that, even without the results of questionable interrogation techniques on terrorism suspects, the government can make and prove its case. We can only wonder how much easier proving the case would have been had those interrogation techniques not be used.

Lawrence Friedman and Victor Hansen are Professors of Law at New England Law Boston.

Suggested citation: Lawrence Friedman, Victor Hansen, The Ghailani Trial: Justice Served, JURIST – Forum, Nov. 24, 2010, http://jurist.org/forum/2010/11/the-ghailani-trial-justice-served.php.

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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.