Critics of terrorist verdict are off base

Critics are blasting the Obama Administration because Ahmed Ghailani, the Tanzanian-born terrorist recently tried in a federal court in New York, was convicted on only one count of terrorist-related activity.  Some are even calling for Attorney General Eric Holder to resign or be fired.  Their criticisms, however, ring more of politics than legal understanding; and both Holder and President Obama should resist their efforts. 

Yes, Ghailani was convicted on only one of the 285 counts charged against him in the indictment; and all related to the 1998 bombings of United States’ embassies in Kenya and Tanzania that killed 223 people.  But that does not mean the jury system failed us or that the sky is now going to fall on us, as some of the critics imply. 

Ghailani was captured in Pakistan in 2004, and is one of more than a dozen suspected terrorists who had been held in detention facilities at the United States Naval Base at Guantanamo Bay, Cuba to be transferred to the United States for trial in our court system. 

But much like the Queen of Hearts in Alice’s Adventures in Wonderland, following last week’s verdict against Ghailani, Newt Gingrich, Tim Pawlenty and other neo-conservatives loudly criticized both Obama and Holder as soon as the single guilty verdict was announced.  Just as the Queen in Wonderland decreed, “No! No! Sentence first – verdict afterwards,” these neo-conservative critics had long-ago concluded Ghailani was guilty on all 285 counts charged against him.  

These and other critics have a beef with the Obama Administration that extends far beyond this particular case.  They object to the entire process of trying persons accused of violating U.S. laws against terrorist acts in U.S. courts.  In their view, persons charged with violating U.S. anti-terrorism laws should be tried only by military tribunals where, in their view, torture-induced evidence is acceptable and admissible.  

This last point is relevant because the judge in the Ghailani case — the respected jurist Lewis Kaplan — excluded evidence the government wanted to use against Ghailani, because it was procured through the use of so-called “enhanced interrogation techniques”; more commonly known as “torture.” 

Predictably, critics of Obama and Holder are seizing on the trial judge’s exclusion of torture-induced evidence as proof that our civilian court system cannot properly provide a forum for trying those accused of violating our federal criminal laws outlawing acts of terrorism. In an interview with the conservative magazine Newsmax, Newt Gingrich claimed, “They’ve endangered our national security. They allowed a federal judge to throw out most of the evidence.” 

This sentiment was echoed in an editorial at The New York Times, in which another prominent neo-conservative, Andrew McCarthy, wrote, “[c]onstruing civilian due process standards, the trial judge denied prosecutors the ability to call the crucial witness who would have testified to Ghailani’s purchase of the TNT used in the 1998 embassy bombings.” 

In fact, the result likely would have been the same had the administration elected to try Ghailani in a military tribunal.  As legal observers Benjamin Wittes and Jack Goldsmith noted in the Washington Post, “[t]here is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a [military] commission.”  Indeed, the 2010 edition of the “Manual for Military Commissions,” makes clear that statements or evidence obtained through torture are inadmissible in a military commission proceeding, just as in a civilian trial. 

Despite claims to the contrary, the judicial process used in the Ghailani case has served us well in the past also.  For example, Ramzi Yousef, the terrorist responsible for the 1993 World Trade Center bombing, was tried, convicted, and sentenced in the same federal court district as Ghailani. As a result of his conviction in that case, Yousef is spending the rest of his life in a supermax prison. 

Moreover, it is not as if Ghailani will soon be walking free.  The conspiracy count on which he was convicted carries a sentence of 20 years to life. It is highly unlikely Ghailani will ever spend another day of his life outside a prison. 

The system did not fail, as Holder’s critics have suggested — it worked.  And it will continue to do so; especially if politics is kept out of the process.

-by Bob Barr, The Barr Code

48 comments Add your comment

Ramguy

November 24th, 2010
6:29 am

Exactly Bob!

Mark

November 24th, 2010
6:43 am

Thank you Bob for the honesty and REALITY. It feels like there are so many American Extremists out there. People who freak out and explode into purely political rhetoric over the slightest instigation. I personally think the most verbal people need to close their mouths and open their minds. Just because one believes in a particular viewpoint, does not mean that it is the only viewpoint, or the right one. It’s as if they cannot fathom the concept that they could be wrong.

the mehlman rings twice

November 24th, 2010
6:48 am

Bob,
If Newt had the discipline in his private life that our legal system has in protecting us he would be much better off? These cry babies would much rather change the rules according to their ever changing political sensibilities of the present time.

Devildog

November 24th, 2010
6:56 am

Spoken like a true Liar …uh, lawyer … Bob. All that mess did was guarantee that a bunch of lawyers made a bunch of money. They say this is a nation of laws, but what it REALLY is is a nation FOR lawyers.
We have a great system, a great Constitution but it’s being perverted by lawyers.

[...] This post was mentioned on Twitter by Bob Barr, Jason Pye. Jason Pye said: RT @bobbarr: Barr Code: Critics of terrorist verdict are off base http://bit.ly/hVWWp1 [...]

Mark

November 24th, 2010
7:03 am

Devildog, they’re called civil rights. You have the right to not be incriminated by someone who was tortured into talking, who could or could not be telling the truth. This is considering the fact that it has been proven that torture victims will say anything to stop the torture. Now, that being said, its also a matter of our country is supposedly the best, yet we apparently think its ok to throw out the rules when it suits us. What makes us better than the terrorists is our belief in civil liberties, and EVERYONE should be afforded the same rights. Whether someone is convicted to life in prison on one count or 285, the result is the same for him. The difference is on us, whether we act justly and treat all human beings equally, or act like terrorists and consider only ourselves to be in the right.

fritz peterson

November 24th, 2010
7:05 am

Bob,
How right you are. We need more statesman leaders who are worried about laws and our troubled times. This is not a time to be worried about Kanye West and reality show filming schedules.

Mr_B

November 24th, 2010
7:35 am

Well done, Mr. Barr.
Now lets see if we can act like Americans for a change, and close down the number one recruiting tool al Qaida has: Gitmo. Bring ‘em to the States, give them real lawyers, and left panels of twelve everyday people figure out what to do with ‘em. We’re really good at this kind of stuff, when we don’t allow ourselves to be blinded by fear.

GB

November 24th, 2010
7:35 am

I have a “what if” question. Suppose the terrorist had been acquited in the civilian court. Would he have been set free? If he was convicted on only one of 285 charges, acquital was certainly a good possibility.

Wasn’t Holder asked this question once about another proposed trial? And didn’t he say the accused would remain in custody anyway?

random observer

November 24th, 2010
7:38 am

A simple “thanks”, Bob! Happy Thanksgiving!!

A Real Americun

November 24th, 2010
7:56 am

Yes us Conservatives are damn tierd of these dadgum hippie libruls screwing up our country. Don’t they know we live by the Constitution round here? Unless of course we don’t want to right now, but that is up to us to decide! How else we suppose to get those tearrests to talk unlessen we rough um up a litte. After all we caught um so they must uv done it.

Mr_B

November 24th, 2010
8:05 am

GB: how about this “what if.” Suppose the prosecution is wrong, and the guy is innocent?
Trials are not about getting convictions. They are about finding out the facts.

Ezra

November 24th, 2010
8:08 am

Liberals idea of a fair trial is for the culprit to get off scott free. The trial lawyers love it because that is millions of tax dollars in their pockets. Lawyers never contribute to a community they take from it.

Ted Striker

November 24th, 2010
8:10 am

Good column. Good points.

Ezra

November 24th, 2010
8:11 am

“EVERYONE should be afforded the same rights”
Where in the constitution does it says our enemies have constitutional rights? This is liberal interpretation of the constitution. You know if it fits your agenda then it is constitutional and if not report it to the lame stream media for broadcasting.

Mr_B

November 24th, 2010
8:12 am

Which is as ludicrous as stating that the conservative idea of a fair trial is a guilty verdict in every case. A fair trial is on e in which evidentiary rules and the rights of both the defendant and the interests of the community are respected.
I don’t see why that should be so tough.

Mr_B

November 24th, 2010
8:13 am

Where in the Constitution does it say they don’t?

RJK

November 24th, 2010
8:13 am

Conservatives idea of a fair trial is whatever Rush says it is.

Ezra

November 24th, 2010
8:17 am

Mr_B

November 24th, 2010
8:05 am
No it is not! It is how you get the facts!

Mr_B

November 24th, 2010
8:19 am

Ezra: “Trials are not about getting convictions. They are about finding out the facts.”
What part of that statement do you have a problem with?

Road Scholar

November 24th, 2010
8:20 am

Ezra, that is one of the…no, the most stupid comment made on the AJC Blog this year! (Maybe that could be a contest at the end of the year?!)

Bob, thank you for stating the legal opinion on this event other than just condeming our constitutional. Rarely do I agree with all you write, but this is spot on.

Besides, if Bush II hadn’t insulted the mafia on 9/11, we could count on this piece of human waste being wiped off the face of the earth. Just let them know when/if he gets out!

Ragnar Danneskjöld

November 24th, 2010
8:26 am

I respectfully disagree with the core thesis, that enemy combatants – captured on a battlefield – deserve a day in court. International agreement allows detention until hostilities cease. There is no potential gain in trying a case before the cessation of hostilities.

Similarly there is no rational reason to try an enemy combatant, captured in the theatre of combat, for alleged acts of war within the civilian system, now that we have the potentiality of military tribunals (comparable to the post-WW2 tribunals.)

In the particular case of Ghailani, the theory underlying the exclusion of evidence does not apply. Hypothetically assuming that “torture” was involved – a concession I do not grant in reality – the jurisprudential reason for excluding evidence so procured is that it is “suspect,” not that it is “immoral.” The evidence allegedly so-procured was identity of a witness. It was the freely-offered dispassionate other-witness testimony that was excluded, not because there was any reason to doubt the credibility of the witness, but to magnify the judge-manufactured doctrine of “fruit of the poisioned tree” – judge-made law which has no basis in statute nor in the Constitution. The trial court erred.

carlosgvv

November 24th, 2010
8:45 am

We can all get a warm fuzzy feeling that an avowed enemy of our Country got convicted of only one count in a civilan court. When many more Americans are killed by those insane Musilm terrorists, our feely touchy liberal feelings may give way to more of the cold, brutal facts of terrorist life.

Thanksgiving

November 24th, 2010
8:49 am

“Dont touch my junk” proved an effective rallying cry. A terrorists need only say, “Dont touch my Molotov COCKtail”, and probably win sympathy with the Rushannities. Ditto worshipers love any rebeling spirit, even if it comes from the enemy.

Too bad Ragnar Danneskjold, who weilds diacritical marks like Napoleon used his cannons at Austerlitz, isn’t on the supreme court. I never knew summations like that were possible. No, seriously, when one reads the logic and the precedent-packed legalese, (not to mention the umlaut ambush) what can one say but, “JBMLAW!”

Happy Thanxgiving, Clarence.

Mr_B

November 24th, 2010
8:56 am

carlosgvv: Those “warm fuzzy feelings” are what keeps us from becoming like those terrorists, which is, after all, exactly what they want.

Common Man

November 24th, 2010
9:06 am

It is a shame the 9/11 hijacker terrorists did not survive so they could have been housed comfortably in jail before receiving their fair trial with the assurance that all their civil rights were protected.

Joe the Plutocrat (the artist fomerly known as paleo-neo-Carlinist)

November 24th, 2010
9:56 am

agreed. we got him, tried him, and sentenced him. he’ll never see the light of day and if he does, we can follow him (he’s not an American citizen). this isn’t NFL Today. who cares about counts to convictions ratio? whether he’s a terrorist or a really bad terrorist doesn’t matter. my only problem is, I would have liked to see him executed. maybe they can just throw him into the GP at some Federal prison, and he can get buggered and “shivved”.

carlosgvv

November 24th, 2010
10:09 am

Mr_B

If we wind up not standing up to them but bowing down to them it will be because of people like you. Rolling over and playing dead is something I will not do.

zeke

November 24th, 2010
10:12 am

YOU ARE LOSING IT, BOB! THE POINT IS THAT FOREIGN CITIZENS, CRIMINALS AND TERRORISTS HAVE NO CONSTITUTIONAL RIGHTS! AND, TO GIVE THEM SUCH RIGHTS IS UNCONSTITUTIONAL! DO YOU THINK THAT IF WE BROUGHT ALL THE NAZIS HERE AND GAVE THEM CONSTITUTIONAL RIGHTS THAT ANY WOULD HAVE BEEN CONVICTED? WHY HELL NO! JUST LOOK AT THE STUPIDITY OF YOU LAWYERS AND THE FOOLISH ARGUMENTS YOU MAKE TO PROTECT CRIMINALS MUCH LESS WAR CRIMINALS AND TERRORISTS! AND THE ABSOLUTE HORRIBLE DECISIONS MADE BY THE JURIES IN MOST CASES ONLY STRENGTHENS THE CALL FOR REMOVING JURY VERDICTS IN MOST CASES! CONSTITUTIONAL RIGHTS ONLY APPLY TO U.S. CITIZENS!

Frank Andrews

November 24th, 2010
10:16 am

The Constitution applies to American citizens, not people in the USA illegally nor to enemy combatants.
The terrorists do not want us to be like them. They want us dead, and all of Western civilization wiped out. There was a bombing in Northern Yemen today that killed at least 15 and wounded at least 30. Sunni v. Shia. Is that too a result of Gitmo?

We are the good guys. As much as you may find that uncomfortable, we are the good guys. But that does not mean we need to roll over and cave to the “if we are nice to them, they will be nice to us” crowd.

J.B.

November 24th, 2010
10:26 am

Mr. B. There are all sorts of things in the constitution giving rights to citizens that arent given to non-citizens. For example the 11th amendment mentions that states and the federal government can’t be sued by foreign citizens or governments. Only citizens can hold certain offices. And the Supreme court has ruled on multiple occasions that citizens of territories overseen by the U.S. are not automatically subject to all the rights of the Constitution.

joe

November 24th, 2010
10:35 am

Once a person chooses to become a terrorists, they should lose all civil rights. For this terrorist to be convicted of only one charge is totally ridiculous. That is like a murderer going to court and only being convicted of a traffic violation. Keep terrorists in military tribunals, where they will receive what is coming to them.

John Galt

November 24th, 2010
11:16 am

Hypothetically assuming that “torture” was involved – a concession I do not grant in reality – the jurisprudential reason for excluding evidence so procured is that it is “suspect,” not that it is “immoral.” The evidence allegedly so-procured was identity of a witness. It was the freely-offered dispassionate other-witness testimony that was excluded, not because there was any reason to doubt the credibility of the witness, but to magnify the judge-manufactured doctrine of “fruit of the poisioned tree” – judge-made law which has no basis in statute nor in the Constitution.

http://www.washingtonpost.com/wp-dyn/content/article/2010/11/18/AR2010111805020.html

Via the Washington Post, “The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations.

Game. Set. Match.

Any questions?

Jefferson

November 24th, 2010
11:31 am

Emotions make people stupid.

bobfromacworth

November 24th, 2010
12:40 pm

I got a great idea. Just turn this criminal over to the TSA and let them grope him, that should be torture enough for a terrorist!

I always say shoot ‘em on the battlefield. No trial needed, no lawyer fees….

mr. dithers

November 24th, 2010
12:43 pm

Zeke, you know nothing of what you rant about. I am a trial attorney, (25 years) and I find that, the vast majority of the time, the jury gets it right. Jurors are very thoughtful and discerning about their responsibility.
And what would make you think that Nazis would not be convicted here? A fair trial is a fair trial procedurally. That’s all. The evidence is what the evidence is and American jurors would have easily convicted Nazis for what they did. Fairness to a defendant of any stripe is the hallmark of our system. It’s been that way for our entire existence. We don’t have summary executions and eternal imprisonment for any crime without a plea or a fair trial. It’s what makes us America.

onpatroll

November 24th, 2010
1:58 pm

you people are stupid. you think that an european or any other foreigner in this country who is accused of a crime shouldn’t get a fair trial? That doesn’t make any sense at all.

if you want to wave the red, white, and blue; then maybe you should actually stand behind it and recognize the difference between the USA and, say, Pakistan. bunch of talk radio retards.

G. Dubya

November 24th, 2010
2:17 pm

Bravo Mr. Barr, Bravo. I concur with you admantly and concede this is the first time that i have done so.

Deano

November 24th, 2010
2:58 pm

So many touchy feely people here. Enemy combatants get military tribunals period. Where do you get off humanizing these vermin? Everyone is so PC that they are “afraid” we will become like the terrorists we imprison. Looks like everyone has totally forgotten about 9/11. Oh well, another will come soon enough and you idiots will still be idiots. Sleep tight.

Ezra

November 24th, 2010
3:02 pm

Yes, Mr. Barr, the so called “enhanced interrogation techniques” decided by a judge to be inadmissable as evidence. I read on this blog that a trial was about finding the facts not a conviction. Well, now I am confused. So finding the facts, not fabricating the facts like most liberals do, depends on the techique you use to find these facts. Our laws define these for citizens. Liberals do not care about facts if the facts do not promote their socialist agenda. The man should die. You killed Tim McVeigh for the same crime but we are going to be more American to terrorists so we can have a better fellowship with the rest of the world. A wise man told me once that lawyers do not contribute to a community but take from it.

J.E.

November 24th, 2010
4:22 pm

You didn’t hear a peep out of Republicans when Bush was trying terrorists in civilian court, but like so many other things they have huge problem with it now that the Democrats are doing it. Far more terrorists have been tried and convicted by the civilian courts than by military tribunals, so anyone against that must be more political than actually practical.

markie mark

November 24th, 2010
4:42 pm

Mr Barr, I have been a fan for many years. But to equate enemy combatants with criminals, and afford them the rights of American citizenship, which is a symbol of what they are trying to destroy, is mind boggling to me. What happens if we capture a brigade of enemy combatants on the battlefield? The sheer numbers of trials would overwhelm a civilian court system that is pretty bogged down as it is. Sorry, if we have decided “enhanced interrogation techniques” are really torture, then as a society we will do away with them. But I bet Daniel Pearl somewhere wonders what the hell he died for. Theirs is a belief system and an ancient rule of law that doesnt respect something as esoteric as rules against “torture”.

Tony

November 24th, 2010
6:06 pm

Well like Rush says..”If all the jurors were on oxycontin all the time like I am, then that terrorists conviction would have been a forgone conclusion. Besides, what’s a little enhanced interrogation techniques gonna hurt? They’re enemy combatants after all!”

CUSTOM NAVY | Josies Jersies

November 24th, 2010
6:52 pm

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J.B. STONER

November 25th, 2010
8:55 am

When, pray when will you people realize that B.O. and his possy are taking this country down,one brick at a time……….

WAKE THE HELL UP !!!

J.B. STONER

November 25th, 2010
8:56 am

ON PATROL IS IN THE DITCH……..

He needs to tune in to FOX News and see the REAL world….

IDIOT……….

nelson

November 25th, 2010
9:36 am

It was 65 years ago last Sunday that Robert H. Jackson made the opening statement for the U.S. against the Nazis accussed of war crimes, in front of an IMT International Military Tribunal. The trial proceeded in an orderly manner culminating in guilty verdicts against all.

What is the difference today? These are international terrorists and a IMT would be the way to go.

Ahmed Ghalani bombed emabassies in Nairobi, Tanzania, Kenya and Dar es Salaam. That is international. Robert Jackson was a Supreme Court Justice at that time of the Nuremberg trials and well aware of the proper use and procedure of the law.
I doubt that he would have proceeded if it were improper.

Bryan F

November 27th, 2010
7:02 am

I am a conservative & disappointed by the verdict in the recent trial. I have a legal question which I can’t find the answer. Supreme Court rulings have affirmed that non-citizens accused of a crime in the US are protected by the 5th & 6th amendments. My question is whether this applies to non-citizens who commit crimes outside of US are protected by the same constitutional rights as aliens who commit crimes inside the US. It seems that many of these terrorist could be charged with conspiracy to commit murder & that the crimes were committed outside of the US in a war zone.