Thiessen recycles false talking points on military commissions
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.
| November 23, 2010; 10:50 AM ET
Categories: Foreign policy and national security
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