Nov
20

Ghailani Verdict A Victory In "War On Terror"

I am, truth be told, far more terrified of the United States Government than I am of the likes of Ahmed Ghailani. Sure, Mr. Ghailani and his ilk can bomb a building and cause mayhem. But only the Government has the power to suffocate daily, slowly and steadily depriving me of the freedom to breathe. Hence, I count it a victory that Ahmed Ghailani was acquitted of all but one of more than 280 counts in his recent terrorism trial. I fear the victory shall be short lived.

Mr. Ghailani is the first of the detainees held incommunicado at Guantanamo to be put to trial. He was accused of being a co-conspirator in the 1998 bombings of U.S. embassies in Africa. He almost certainly played a role in these bombings, and the one count of conspiracy to destroy Government property for which he was convicted stands for the proposition that he is a convicted terrorist. But the real significance of this case is that his confession to a broader role, and the the words that would have most likely led to a conviction on many or all counts, were never heard by the civilian jury that decided his fate.

Those words were never uttered in a courtroom because they were extracted from him on pains of aggressive interrogation, or psychological torture, while in American custody at a secret prison maintained by the Central Intelligence Agency. The judge presiding over his trial would not let the jury hear those words because of the shameful manner in which they were procured. That ruling represents a triumph for the rule of law and a rebuke to a Government prepared to trade limits to its power for security at any cost.

We get the Government we deserve, however, and critics now contend that a man who was obviously guilty of serious crimes was acquitted because his words could not be used against him. They turn this argument against the proposition that justice should be meted out in civilian courts, where time-tested rules of evidence and criminal procedure protect the accused against Government misconduct. Critics contend that in the war on terror, civilian courts are a luxury we cannot afford. Mr. Ghailani should have been tortured if that is necessary to get at the truth; and he should have been condemned, they argue.

But who is the torturer? A secret agent in a secret prison doing the shameful work of extracting words from a man on threat of pain? The thumbscrew has long been the tool of the tyrant or the limitless mob. Consider the use of the stone press during the Salem witchcraft trials in the Seventeenth Century, when an elderly man was pressed to death because he would not confess that he was a witch. Who is to say that any one of us cannot be accused of a similar crime in today's climate of undifferentiated fear? The war on terror is, after all, a war against individuals using criminal tactics. Declaring a war against tacticians without state support makes prospective terrorists of any who are accused of violating the law.

What terrifies about the acquittals in Mr. Ghailani's case is not the prospect that he will commit further acts of terror. He is likely to receive a lengthy sentence on the single count of conviction. What terrifies is that the trial will be used as proof that civilian courts won't work. The fact that the man confessed to being part of a terrorist organization is enough for many to conclude that he is a sworn enemy of all we hold dear. Perhaps he is such an enemy.

Attorney General Eric Holder regarded this trial as a test case. Prior to trial, he requested memoranda from civilian and military prosecutors on how a trial would be conducted in their respective fora. Mr. Holder chose the civilian courts, knowing the confession could not be used, and expecting that a civilian court would impose limits a military court might not be so quick to endorse. Will the failure to convict lead a results-oriented Government to conclude that due process and fundamental fairness are luxuries we cannot afford in a dangerous world? Will the administration now move the trials of those responsible for the 9/11 attacks to military courts? Behold the slippery slope to tyranny.

The good people of New Hampshire have "Live Free or Die" stamped onto their license plates. I wonder how many of us mean that any longer. A terrorist can destroy a building, disrupt commerce, make me fearful. But my Government can destroy even more. It can transform the public sphere into a surveillance society; it can teach guards to grope every member of the group; it can read my mail, monitor my Internet usage, sneak and peak through the contents of my home and office. It can do all this in the name of security, while all the while leaving me no security against its reach. My Government can make me a slave in my own home. No terrorist can do that.

Mr. Ghailani's acquittals were a remarkable victory in our conflict with terrorism. We acted on core values even though those values resulted in an awkward result. A court told the Government no, and a man who was most likely factually guilty of crimes was not convicted. Rather than bemoan this result, we should rejoice. But our rejoicing should be tempered by the firestorm to come next time, when the Government tries to seduce us with the illusion that we can be safe from external threats only at the cost of succumbing to the ever-present threat within. 

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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