A “Total Miscarriage of Justice”

Ahmed Khalfan Ghailani
Image via Wikipedia

That’s how incoming House homeland security chair Pete King described the Ghailani trial. Ghailani (pictured) was, of course, found guilty on only one of the 285 charges brought against him, and consequentially got off with a light slap on the wrist: twenty years to life imprisonment.

So why did the prosecution wind up with such a poor batting average? In part, because the evidence was contaminated by the Bush administration’s illegal torture policy:

Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who in turn provided the most damaging testimony against Ghailani.

As FDL perceptively wrote, it is possible that Abebe’s own testimony against Ghailani was itself coerced.

On Oct. 5, Judge Lewis Kaplan [pdf] excluded Abebe’s testimony, on the grounds that it was a a fruit of a poisonous tree, i.e. was only available to the prosecution because Bush had had Ghailani tortured (and maybe had had Abebe tortured, as well!)

That was why Ghailani could not be convicted of murder, as he from all accounts ought to have been. Had his connection to Abebe been discovered by ordinary questioning or by good police work, then the latter could have freely taken the witness stand. In fact, it seems to me very likely that Abebe would in fact have been discovered in other ways– from the record, e.g., of Ghailani’s cell phone calls, or even just from his own account of his activities.

So the court excluded evidence that was maintained illegally, but still condemned a guilty man to a very long stay in prison. Actually, it sounds like the criminal justice system acquitted itself fairly well in this case, no? If anything, the injustice here is that the people who ordered Ghailani’s torture — which, remember, made him harder to prosecute — won’t be brought up on charges themselves.

But that’s not how King sees it. The same Guardian article I linked to above says:

Congress must approve any transfer of Guantánamo Bay prisoners to US soil, something King said would never happen now his party held sway in the legislature after the midterm elections: “They couldn’t come close to getting that done when the Democrats were in charge. There’s no way they’re going to get it now that Republicans are in charge.”

This can’t be repeated often enough: King’s grievance isn’t regarding the legitimacy of the trial, but that a legitimate trial reached an outcome he doesn’t like. To him, torture is a lesser injustice than the inadmissibility of “evidence” that was extracted by torture.

And his solution is to compound injustice on top of injustice, and move to block any attempt to transfer detainees from Guantanamo to U.S. soil. That means that the Obama administration is left to either prosecute them through military tribunals (see here for why that’s a really bad idea) or let them molder in a cell without charges indefinitely, as they plan to do to Khalid Sheikh Mohammed. Sadly, I doubt they’ll even put up a fight.

Crossposted at the League of Ordinary Gentlemen.

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