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Civilian Trial Policy Fails: Ghailani Acquitted of All But One Count

President Obama's decision to try terrorists in civilian courts, rather than the military commissions authorized by Congress and international law, suffered a major defeat yesterday, as a jury which had been denied critical evidence acquitted Ahmed Khalfan Ghailani of all but one of the counts against him.  Benjamin Weiser has this report in the NYT.

As previously noted here and here, the government dodged the speedy trial bullet (with help from CJLF) that would have precluded the prosecution altogether.  However, as noted here, testimony of a critical witness was excluded on the ground that the government learned about the witness through involuntary interrogation of Ghailani.  See prior post here.  Rules designed to safeguard American citizens from oppressive police interrogations have no place governing military and intelligence services grilling alien enemies, yet the rule was applied to exclude this evidence.

You made a huge mistake, Mr. President.  Recognize it and do not repeat it.  Try the rest of the terrorists before military commissions.

Update:  The 11:02 a.m. update to this AP story reports, "A Justice Department official says the Obama administration is committed to trying some terrorism suspects in civilian courts."

Update 2:  The NYT's Room for Debate blog has this unbalanced debate, with only one of five, Andrew McCarthy, taking the position that this result demonstrates why these cases should not be tried in federal court. Robert Chesney of UT Law makes the astonishing statement, "Never mind that there's no particular reason to believe the result would have been any different with a military commission."  Yet later in the same post, he notes, "Much was made in the Ghailani case, for example, of the court's exclusion of a key witness because the government learned of the witness through coercive interrogation of the defendant."  That is the particular reason, professor.


Why should the same rules not apply for 'alien enemies'. Are there no reliability concerns in these cases? There's just as much chance of unreliable evidence and just as much incentive to discourage oppressive interrogation this arena as there is for the civilian police force.

I also note it seems from your prior posts on wrongful convictions that you think a jury's verdict of guilt is entitled to respect - a jury's verdict of acquittal is obviously wrong. You've also conveniently left out from your criticism that the count on which Ghailani was convicted will leave him in jail for 20 years.

The ruling in this case is not based on reliability of the evidence. The evidence is an independent witness, not a statement of the defendant, and the means by which the government learned of his identity has no bearing on his credibility.

This disposition is not a "win" for the government or the American people and should not be construed as such. A terrorist who played a significant role in the death of 224 Americans will nor be punished as such unless a federal judge sees fit to utilize acquitted conduct/not admitted evidence in the formulation of the sentencing guidelines.

If the President's primary concern is the security of the American people and not Islamist sensibilities, he will see the folly of trying enemy combatants in federal court.

I think the President's primary concern in this matter is and should be that the Constitution is upheld and that government should not try and circumvent it when it's convenient for them to do so.

kent - do you have a link to the trial judge's ruling you could post? I would like to read it instead of going off newspaper interpretations. I could probably find it through some creative googling, but thought it would be easier to ask.

The blog software isn't letting me upload the file I have, which is a graphic scan of the document. Says it's too large. I expect you can find it on the Net somewhere, though.

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