The enduring appeal of trying terrorists before military commissions
Media Matters attacks my column today in which I argue that, in the wake of his 284 acquittals in a civilian court, Ahmed Ghailani should be sent to Guantanamo to stand trial for other terrorism charges before a military commission. They write:
Marc Thiessen... argued that Ghailani should have been tried in a military commission because testimony not allowed in a civilian court would have been permitted by a military commission. However, as Media Matters has noted, numerous legal experts -- including the federal judge presiding over Ghailani's case -- have argued that a military commission would have also likely excluded this testimony.
They then go on to reprint an extended quote from my column citing the more permissive rules in a military commission. But interestingly, they cut off the excerpt from my piece at exactly the point before the following appears:
"A different outcome could have been expected at Guantanamo because of the different rules that pertain there," [former attorney general Michael] Mukasey says. "There is no question that valuable information was gotten from him that led to evidence that could have been used against him in a military commission."
Apparently Judge Mukasey does not qualify mention as a "legal expert" in the eyes of George Soros and the folks at Media Matters. Nor does he qualify as such in the eyes of Adam Serwer, who writes on the Post's Plum Line blog today:
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.
So those who agree with civilian trials are "legal experts" but those who disagree are "partisan figures"?
In fact, there are plenty of legal experts who have said that the evidence against Ghailani that was excluded in civilian court may very well have been allowed in a military commission. In addition to Mukasey, Lt. Col. David Frakt, a Guantanamo defense lawyer, has said that, "because the Military Commission Rules of Evidence are more permissive regarding evidence derived from coerced evidence, I do think it is possible that the witness might have been allowed to testify in a military commission." Former CIA Director Mike Hayden and I recently debated Frakt as part of the Intelligence Squared debates. He is an opponent of military commissions and thinks terrorists should be tried in civilian courts. But he acknowledges what is beyond question: that the rules in a military commission are designed to provide greater leeway to prosecutors in allowing evidence that would be excluded in a civilian court.
In his post, Serwer makes other dubious allegations against me. For example, he charges that "Thiessen truncated [Judge] Kaplan's statements in order to suggest that Kaplan had given unqualified praise to the CIA's coercive methods." Serwer has made this claim before, challenging my assertion in The Post that Judge Kaplan found Ghailani's CIA interrogation had produced valuable intelligence that the government may not have collected otherwise. He is flat wrong. Not only did Judge Kaplan unequivocally conclude that Ghailani's CIA interrogation produced valuable intelligence, but he did so based on the arguments of the Obama Justice Department, which attested to the effectiveness of Ghailani's interrogation in a detailed brief to the court. The filing explained Ghailani's intelligence value:
In an organization as secretive and security-conscious as al-Qaeda, the defendant was therefore a rare find, and his then-recent interactions with top-level al-Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation's war efforts. As a result the defendant was an appropriate candidate for questioning by the CIA which therefore put him in the RDI program.
The Justice Department went on to say:
When he was captured, the defendant was believed to have, and did in fact have, actionable intelligence about al Qaeda--by virtue of his longstanding position in al Qaeda; his assistance to known al Qaeda terrorists; and his close relationship with high-ranking al Qaeda leaders, including Usama Bin Laden. In light of those extraordinary circumstances, the United States justifiably opted to initially treat the defendant as an intelligence asset--to obtain from him whatever information it could concerning terrorists and terrorists plots. This was done, simply put, to save lives.
The filing continued:
There was every reason to believe that he would have crucial, real-time intelligence about senior al Qaeda leaders and al Qaeda plots...[Several redacted paragraphs follow, describing the intelligence Ghailani provided]. The results of the CIA's efforts show that the defendant's value as an intelligence asset was not just speculative....The defendant...did in fact have actionable intelligence about al Qaeda...[and] information supplied by the defendant had important real-world effects....The interest in national security plainly justified holding the defendant in this case as an enemy combatant [and] interrogating him....even if that meant delaying his criminal trial.
In his 48-page unclassified ruling, (you can read the full text here) Judge Kaplan agreed with the Justice Department:
By the time he was captured abroad in July 2004, the executive branch has reasonable belief, supported by fact, that Ghailani had critical intelligence information that could not be acquired other than by placing him in the CIA program... Ghailani was detained and interrogated by the CIA outside the United States for roughly two years. Many details of the CIA program and its application to specific individuals remain classified... To the extent that they are relevant to the disposition of this motion, the details of Ghailani's experience in the CIA Program--in particular, the specific interrogation techniques applied to him, are described in the Supplement. Suffice it to say here that, on the record before the Court and as further explained in the Supplement, the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.
Kaplan also rejected Ghailani's claim that his intelligence value dissipated over time, calling his argument "unavailing":
The government has offered evidence that Ghailani continued to be of intelligence value throughout his time in CIA custody. Ghailani's counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary. As discussed in the Supplement, the Court concludes that the government's evidence is persuasive.
And Kaplan concluded:
The government has offered credible evidence indicating that the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating al-Qaeda and protecting national security. The same evidence shows that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time...Two years of the delay [while Ghailani was held by the CIA] served compelling interests of national security.
As they say in the legal profession, "case closed."
But this is not Serwer's only error. For example, he writes in today's post:
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.
Really? In my column I wrote:
Ghailani trial was going to be the easy case that paved the way for the other terrorists in Guantanamo to be brought before civilian courts. After all, Ghailani was already under indictment for the embassy bombings before he was captured, and four people involved in attacks had been successfully prosecuted in 2001.... But Holder's triumph instead turned into a debacle. Much of the evidence that had been used in the earlier embassy bombing trials was no longer available. For example, the owner of the truck Ghailani used in the attack - the man who nine years ago had helped establish Ghailani's role in the bombings - had since died. And then there was the trial's coup de grace, when Judge Lewis Kaplan ruled that the government's star witness - the man who delivered five crates of TNT to Ghailani - could not testify because he was first identified by Ghailani during coercive CIA questioning.
Apparently Serwer didn't read my column any more carefully than he read Judge Kaplan's ruling on the effectiveness of enhanced interrogation. The fact is, despite the best efforts of Serwer and Media Matters to suggest otherwise, there is no consensus that a military commission would have rejected the same evidence that was excluded in Ahmed Ghailani's civilian trial. But there is broad consensus -- even among top Obama administration officials -- that CIA interrogations, including Ahmed Ghailani's, produced life-saving intelligence.
| November 24, 2010; 9:30 AM ET
Categories: Thiessen | Tags: Marc Thiessen
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