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Posted at 10:50 AM ET, 11/23/2010

Thiessen recycles false talking points on military commissions

By Adam Serwer

It's hardly a surprise that former Bush speechwriter Marc Thiessen would use his Monday column to attack the Obama administration over the verdict in the Ahmed Ghailani case. What is somewhat surprising is that he's stuck to the same misleading talking points he used last time around.

Thiessen insists that a military commission would not have produced the same mixed verdict, because the testimony of a witness whose identity was gleaned through a coercive interrogation was disallowed by Judge Lewis Kaplan in Ghailani's civilian trial. In his original column on the subject, Thiessen truncated Kaplan's statements in order to suggest that Kaplan had given unqualified praise to the CIA's coercive methods, in part because that column, like this one, is more about defending the Bush administration's use of torture than it is the use of military commissions to try suspected terrorists. Thiessen notably omits that four of Ghailani's accomplices were convicted in civilian court a decade ago and are currently spending the rest of their lives in a supermax prison in Colorado.

Thiessen could have argued plausibly that a hold-out juror would have been less of a factor in military commissions cases where verdicts need only a 2/3 majority on the jury, but he doesn't. (Of course, a different civilian jury would also likely have produced a different result.) Instead he repeats the canard that the coerced evidence Kaplan excluded would have been admissible in a military commission:

Kaplan ruled that this made his testimony the "fruit of the poisonous tree." But in a military commission -- under the rules put in place by the Bush administration and approved by Congress in 2006 -- there was no "fruit of the poisonous tree" rule. Any statements Ghailani made through coercive interrogations could not have been used against him. But indirect evidence and the testimony of witnesses that trace back to those statements would have been permitted. And as I pointed out in an October column, even under the Obama administration's revised military commission rules, evidence obtained through involuntary statements can be admitted if the government can show that it would have discovered the evidence anyway, or if the court finds the "interests of justice" favor it.

Thiessen is again being selective with Kaplan's words.

As if to personally correct Thiessen, in a ruling issued days after Thiessen's last column on the subject Judge Kaplan wrote that the military commissions would have likely barred such evidence, if not because of their own regulations, because of the Constitution of the United States. As much as Thiessen might prefer that Gitmo detainees not have constitutional rights, as Ben Wittes points out the Supreme Court settled that question in Boumediene.

Thiessen borrows the authority of former Attorney General Michael Mukasey to bolster his point, but despite his admirable efforts to depoliticize the Justice Department following Alberto Gonzales's embarrassing tenure, Mukasey has become a much more partisan figure of late. Last year he attacked the administration for recognizing the Fifth Amendment rights of underwear bomber Umar Abdulmutallab, saying that allowing him to have a lawyer interfered with intelligence collection. As a Judge, Mukasey had actually ruled in the case of Jose Padilla that "the interference with interrogation would be minimal or nonexistent" if he were given access to an attorney.

Everyone from Judge Kaplan himself to Col. Morris Davis, the former Chief Military Commissions prosecutor at Gitmo, to Jack Goldsmith, the former head of the Office of Legal Counsel under Bush, have stated that the evidence would probably have been excluded in a military commission as well. This really is a nonstarter.

As an aside, it's interesting that Thiessen insists on mentioning that Ghailani was Osama bin Laden's cook in order to show the depth of his connection to al-Qaeda. The Obama administration recently tried another of bin Laden's cooks in a military commission. He got fourteen years. That kind of light sentence is typical of the military commissions thus far. But we're supposed to view Ghailani likely spending the rest of his life in prison as a failure of the civilian system.

Thiessen ends his column on the most classless of notes:

What is needed is action to repair the damage caused by his 284 acquittals. We owe that much to the families of his victims, whom the government failed with its insistence on a civilian trial. The best chance to give them the justice a civilian jury denied them is to bring charges against Ghailani in a military commission at Guantanamo Bay - the forum where he belonged in the first place.

A spokesperson for the families of the 1998 embassy bombing victims told me on Sunday that the victims were satisfied with the decision to try Ghailani in civilian court and that they would like for people to stop turning the verdict into a partisan issue. Since that was published yesterday Thiessen could not have known that before his column went to print, but it reflects poorly both on Thiessen and the merits of his argument that he would so casually attempt to appropriate their tragedy for his own political purposes. 

If the administration has enough evidence to charge Ghailani again for another set of crimes, it should. But flying him back to Gitmo is a waste of time and money. The Ghailani trial produced none of the nightmare scenarios conservatives warned of -- the trial was not a venue for terrorist propaganda, there was no leaking of intelligence secrets, no high-level security threat, and Ghailani was convicted despite being tortured. Conservatives are making the Orwellian argument that successfully convicting a terrorist in open court proves the administration should never do it again.

Adam Serwer is a staff writer at The American Prospect, where he writes his own blog.

By Adam Serwer  | November 23, 2010; 10:50 AM ET
Categories:  Foreign policy and national security  
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Comments

It boils down to, if you don't torture, all your evidence doesn't get thrown out.

Follow the law and the law and courts will work properly.

Break them and you get the fustercluck we've got now.

Posted by: mikefromArlington | November 23, 2010 11:05 AM | Report abuse

"What is somewhat surprising is that he's stuck to the same misleading talking points he used last time around."

Surprising? I think not. As Bill Clinton recently said: Conservatives are impervious to evidence.

Today's GOP: They put the Con in Conservatism!

Posted by: wbgonne | November 23, 2010 11:09 AM | Report abuse

http://www.slate.com/id/2275545/

Posted by: jnc4p | November 23, 2010 11:11 AM | Report abuse

"The Ghailani trial produced none of the nightmare scenarios conservatives warned of."

!!!

284 acquittals, Adam, 284 acquittals.

Posted by: sbj3 | November 23, 2010 11:18 AM | Report abuse

See also:

http://www.slate.com/id/2143983/

"What Scalia did stress is that—in sharp contrast to the situation faced by the early Warren Court (which was the first to apply the exclusionary rule to ordinary state crimes)—today a wide range of civil rights laws and regimes offers a superior model for enforcing the Fourth Amendment via damage suits by innocent citizens and other devices rather than suppression motions by the guilty."

Posted by: jnc4p | November 23, 2010 11:19 AM | Report abuse

"284 acquittals, Adam, 284 acquittals."

TORTURE, sbj, TORTURE.

Posted by: Ethan2010 | November 23, 2010 11:23 AM | Report abuse

Minimum of 20 years in prison sbj, 20 years minimum.

And did you not read the rest of the post?

" in a ruling issued days after Thiessen's last column on the subject Judge Kaplan wrote that the military commissions would have likely barred such evidence, if not because of their own regulations, because of the Constitution of the United States. As much as Thiessen might prefer that Gitmo detainees not have constitutional rights, as Ben Wittes points out the Supreme Court settled that question in Boumediene."

So what would you have done differently and what would you have expected to be different in the outcome?

"The Obama administration recently tried another of bin Laden's cooks in a military commission. He got fourteen years. That kind of light sentence is typical of the military commissions thus far. But we're supposed to view Ghailani likely spending the rest of his life in prison as a failure of the civilian system."

Posted by: pragmaticagain | November 23, 2010 11:25 AM | Report abuse

Greg Sargant and Adam Serwer


Isn't that the subtitle of the Plum Line?


YOUR DAILY BLOG FOR RECYCLING FALSE TALKING POINTS


That's just about on mark.


.

Posted by: RedDogs | November 23, 2010 11:28 AM | Report abuse

All, Chuck Grassley has taken a shot at Coburn and DeMint over our story reporting that they want ethanol subsidies to expire:

http://voices.washingtonpost.com/plum-line/2010/11/senate_gop_cage_match_grassley.html

Posted by: Greg Sargent | November 23, 2010 11:48 AM | Report abuse

Wow. Just wow.

Obama once again looks like a complete neophyte. The world looks on and makes judgements.

What was it KSM said when he was apprehended? oh yeah: "See you in court". These guys knew that there was a serious percentage of the American population that were just plain panty waists. They are right. Just look at the unbelievable attempt to spin this complete failure of our "justice" system into a moral victory for the left.

yeah right. The evil doers of the world see this for exactly what it is: a license to kill. Americans are more at risk now that we've shown our lack of resolve.

And all of this so that folks like Ethan can crow about moral superiority. No doubt that will do wonders for the folks who are killed in the next random attack by muslims. They will be dead. Ethan won't be right.
Serwer does his usual regurgitation of someone else's talking points. The misinformation contained in today's installment revolves around two things:
(1) Mr Serwer asks us to believe that his hypothetical is somehow more potent than Theissen's hypothetical. Gosh Adam, they are both, you know, um, like, hypotheticals. This is like arguing about the best left handed reliever in the national league, only thousands of lives are at stake if we get it wrong. But hey, that's just details.
(2) The "spokesperson" to whom we were introduced only yesterday is now relied upon as being the final word for the hundreds who died at this guy's hands. Not a chance of that flying Mr Serwer. It might make your leg tingle to think that someone who agrees with you is the final word, but she ain't. It boils down to this: Mr Serwer said so. I hardly think so.

Anyone who thinks that the escalation on the Korean pennisula isn't a direct result of assessing Obama's weakness needs to wake up and smell the chai.

Posted by: skipsailing28 | November 23, 2010 11:48 AM | Report abuse

@pragmatic: There were two confessions: one to the CIA and one to the FBI. The FBI was voluntary but the DoJ chose not to attempt to get it admitted. This is the evidence that a military commission is likely to have admitted. The Abebe testimony may have been admitted in the civilian court but the DoJ failed to prove that such testimony would have been given voluntarily. The man who sold the truck to Ghailani died so his testimony was not admissible in civilian court but may have been in military tribunal.

The man who confessed to aiding in these murders is not found guilty of them. This is a miscarriage of justice. Holder should be fired.

"Military commissions need not assume that a defendant is endowed with all the rights of American citizens. They need only be fair. Of course, coerced confessions would be suppressed. Voluntary confessions, however, would be admissible. Available witnesses would be permitted to testify. Prior testimony from unavailable sources might well be considered as long as it appeared reliable — such as the sworn testimony of a now-deceased witness who was subject to cross-examination."

http://www.nationalreview.com/articles/248886/embassy-bombing-trial-jeopardy-andrew-c-mccarthy?page=2

"Civilian due process obstructs the government from presenting its best case against these worst offenders, as happened in the Ghailani case when a key witness was suppressed. Civilian justice is something of a crapshoot in that a well-presented prosecution case can be derailed by a single loopy juror, as also happened in Ghailani. As a statutory matter, Congress has enacted military commissions for enemy combatants — a strong statement by the people’s representatives that our civilian courts should be closed to our enemies during wartime. From a human-rights perspective, moreover, it is perverse to reward alien mass murderers with the enhanced due process of civilian courts — with the same rights as the Americans they kill. Our jihadist enemies are not entitled to that treatment; their atrocious methods flout international standards that are designed to protect civilians."

http://www.nationalreview.com/articles/253644/how-should-terrorists-be-tried-andrew-c-mccarthy

Posted by: sbj3 | November 23, 2010 11:49 AM | Report abuse

@sbj3, ss28, reddog, etc:

284 acquittals, Adam, 284 acquittals.

Three words: 20 to life

---

Actually, given his treatment, that was a fantastic outcome. After you torture someone, convicting them on evidence obtained directly or indirectly from that torture should not be allowed. Allowing anything obtained from torture as evidence only encourages the govt to continue torturing. Clearly we can't depend on the press to adequately monitor govt activities in this area, so the govt should be held to the highest possible standard when prosecuting people in their custody with no access to the judicial system (while he was in black sites, no lawyers, just tormentors.)

All you constitutional purists must need crowbars to twist yourselves around to opposing the judicial system laid out by the founders as lacking. Unfair trials and arbitrary govt seizures of people (rendition and torture, in this case) and property (see drug war) were prime factors in the independence movement. It's sad that you would disparage our founding fathers and their desire for defendant friendly instead of govt friendly courts for baseless partisan attacks.

Posted by: srw3 | November 23, 2010 1:04 PM | Report abuse

"yeah right. The evil doers of the world see this for exactly what it is: a license to kill. Americans are more at risk now that we've shown our lack of resolve.

And all of this so that folks like Ethan can crow about moral superiority. No doubt that will do wonders for the folks who are killed in the next random attack by muslims. They will be dead. Ethan won't be right."

So terrorists are more likely to attack after being tried in a civilian court than if they were tried by a military tribunal?

Any support for that opinion, maybe you talked to a terrorist lately who expressed that opinion?

"The "spokesperson" to whom we were introduced only yesterday is now relied upon as being the final word for the hundreds who died at this guy's hands"

I suppose you prefer Mr. Theissen to be the spokesperson for the group? Or are you going to criticize him for positioning himself as the spokesperson as well?

Posted by: ashotinthedark | November 23, 2010 1:12 PM | Report abuse

Why lookie here, doing that of which you accuse others, mischaracterizing my points.

You go son. Yesterday's cheap shot wasn't enough to shake off the weekend lethargy?

Posted by: skipsailing28 | November 23, 2010 1:15 PM | Report abuse

@the A McCarthy argument's deluded followers:

Voluntary confessions, however, would be admissible.

REALLY???

How voluntary can a confession be if it is given to the same people responsible for torturing you?

Especially if you had been held continuously by these people incommunicado for 2 years, and then in extra-judicial prison, where others were tortured?

Once a person in tortured, it may be years before they "recover" and they may always be haunted and motivated by pain and fear of pain. Any confessions obtained after torture, especially to the torturers while the confessor is still a captive, have no place in court. People confess to things they didn't do or almost anything after being tortured.

I'd love to see what old Andy would confess to under kidnapping and repeated waterboarding, beatings, close confinement, sleep deprivation, forced nudity, or just solitary confinement for months at a time although I would not wish it on him. If he volunteered to be kidnapped and waterboarded though....

Civilized nations ban torture for good reasons:
-it generally doesn't work, providing far more false than true information
-it harms both the torturer and the tortured
-it is an expression of the domination of individuals by the state. All "small govt conservatives" should be appalled and sickened that a govt would overreach in this way.
-it justifies our own prisoners being tortured
-it is a slippery slope. Why not torture drug kingpins since they do as much if not more damage than terrorists do? Why not torture street gangs to find murders, since they are often killing American citizens and innocent bystanders? Why are one class of detainees with information to stop future incidents different from these others?

Posted by: srw3 | November 23, 2010 1:23 PM | Report abuse

@ss28Anyone who thinks that the escalation on the Korean pennisula isn't a direct result of assessing Obama's weakness needs to wake up and smell the chai.

Far more likely, a kabuki to create a great warrior myth around the heir apparent, kim the younger.

Was the continued nuclear progress under bush's 2 terms a result of assessing Bush's weaknesses (there are several to choose from)

Obama derangement syndrome--there is help but first you have to admit that you are powerless before the disease.

Posted by: srw3 | November 23, 2010 1:32 PM | Report abuse

What is your point, Skip? How will trying terrorist in civilian courts change their behavior as opposed to them being tried in military tribunals? You said we are more at risk.

And don't call me son.

Posted by: ashotinthedark | November 23, 2010 1:36 PM | Report abuse

@sbj3:The FBI was voluntary but the DoJ chose not to attempt to get it admitted.

See above on why confessions after torture or any information obtained as a result of torture should not be allowed in court.

Gee, I am sure I would feel free to talk frankly, honestly, and free of coercion to the civilian security services after being tortured that same govt and held at a military detention center where other prisoners were tortured. After all, its not like my benevolent captors have ever tried to trick or coerce me before...

No coercion here...Move along....

The airwaves are a buzz in rightwingnutistan.

Posted by: srw3 | November 23, 2010 1:43 PM | Report abuse

There is no point in responding to srw3. His belief is that anyone who doesn't agree with his politics is a pig. Why waste time with someone of such a base character? I predict that srw3 will respond to this will still more insults. What a great guy, eh?

It is not a question of where they are tried. It is a question of what Americans do to those who seek to kill them. This guy whacks more than 200 and gets what Ethan brags about: 20 to life.

This was a demonstration of both fecklessness and weakness. The evil doers of the world have taken note.

Posted by: skipsailing28 | November 23, 2010 2:26 PM | Report abuse

"It is not a question of where they are tried. It is a question of what Americans do to those who seek to kill them. This guy whacks more than 200 and gets what Ethan brags about: 20 to life."

I don't know how much thought terrorists give to their possible jail sentences (particularly suicide bombers), what punishment do you think would deter them from future attacks?

"This was a demonstration of both fecklessness and weakness. The evil doers of the world have taken note."

How do you know they have taken note?

Posted by: ashotinthedark | November 23, 2010 2:33 PM | Report abuse

yup. You got it right. You don't know.

Next point:

I'm basing my opinion on history. It is pretty simple. The evil doers take an action, guage the response and then take the next action. compare the response of the French Government to Hitler's early moves. Compare the behavior of the Soviets to Jimmy Carter's inability to deal effectively with Iran.
We are supposed to be the superpower, but it is clear that the weenies are in charge now. Does anyone in the world really think that Obama&Co would respond to a 9/11 level attack with an invasion into the heart of the world that produced it? I doubt it.

I am concerned that Hezbullah/Syria/Iran will foment trouble in Lebannon. The PA has already used Obama's rookie mistake to halt "the peace process". The Norks will escalate their provocations because they know we won't do anything really bad to them. Iran/Venezuela will continue to destroy Mexico so that it can be a platform for an assault on America's border. No, they can't win an all out war, but they can bleed us as the weenies argue about the legal rights of illegals visitors and the inept folks in the white house try their best to imitate Jimmy.

One of the nice things about growing old is remembering when we've seen this picture before. This is the return of the son of Jimmy Carter. It was a disaster for America then and Obama's ineptness will create problems for us that will take years to resolve.

Posted by: skipsailing28 | November 23, 2010 2:59 PM | Report abuse

yup. You got it right. You don't know.


Ah yes and you, in your infinite wisdom know how much thought they give to a jail sentence. I bet te once who plan to blow themselves up are real excited about e increased possibility of an acquittal.

Posted by: ashotinthedark | November 23, 2010 8:42 PM | Report abuse

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