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Posted at 9:30 AM ET, 11/24/2010

The enduring appeal of trying terrorists before military commissions

By Marc Thiessen

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.

By Marc Thiessen  | November 24, 2010; 9:30 AM ET
Categories:  Thiessen  | Tags:  Marc Thiessen  
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Comments

I have never read, nor has it ever been proved that any life saving information was discovered through torture. Please quit defending torture as a means of interrogation. Would it be OK for your son or daughter, if they were soldiers, to be tortured because the enemy thought it would save their people's lives? Do you still believe that the guilty are always arrested? What is your fear of the American Justice System? You sir are a coward and fear monger.

Posted by: mg11231 | November 24, 2010 12:19 PM | Report abuse

I have never read, nor has it ever been proved that any life saving information was discovered through torture. Please quit defending torture as a means of interrogation. Would it be OK for your son or daughter, if they were soldiers, to be tortured because the enemy thought it would save their people's lives? Do you still believe that the guilty are always arrested? What is your fear of the American Justice System? You sir are a coward and fear monger.

Posted by: mg11231 | November 24, 2010 12:20 PM | Report abuse

Once again Mr. Thiessen is up in arms about critics supposedly misrepresenting his views by quoting him selectively or not reading his words carefully. Leaving aside the regularity with which he commits both errors, most of the examples he offers here simply don't match reality.

Take his complaint that he really did acknowledge that the Bush administration successfully prosecuted terrorists in civilian courts. Unless one already knew the case to which Thiessen referred, as cryptically and grudgingly as possible, there is no way one could learn the facts that Serwer lays out clearly and simply.

Even more important, however, Thiessen is so intellectually dishonest that he never spells out the fatal flaw of using military commissions to prosecute alleged terrorists. The fact that the rules of evidence so blatantly favor the government, including unrestricted use of statements obtained via torture, instantly robs any decision the process renders of credibility.

But not to worry: In Thiessen's world, the important thing is to obtain convictions-- not to do justice, or obtain reliable information that could head off future attacks. Such an approach is as shortsighted as it is despicable.

Posted by: DCSteve1 | November 24, 2010 12:27 PM | Report abuse

Why do you hate the American legal system? Why do you think a military trial would have given a different result? What you want are Stalinist show-trials that have a pre-determined outcome. We did the right thing by trying him in a civilian court, following the American principles that service members fought and died to uphold. You still play the fear-mongering card. The sky is not falling.

Posted by: jckdoors | November 24, 2010 12:36 PM | Report abuse

Seeing as how Marc Thiessen approves of the State-Sponsored torture of prisoners who have not been convicted of a crime, he must be overjoyed at the torturing of Jesus Christ, a convicted criminal and proven enemy of the State.

"Somebody give me some nails, it's hammer time!"
Marc Thiessen

Posted by: FriendofKeyserSoze | November 24, 2010 1:55 PM | Report abuse

Thiessen must have been a Cosmo Girl in a former life, because he wants it all: He wants a detainee to be interrogated for "actionable intelligence," and also tried for terrorist activities when any evidence obtained by coercion would be thrown out of a civilian court. Thiessen's answer: military tribunals, which will allow the answers obtained under coercion to be used against the alleged perp.

How wonderful for you, Thiessen. I harbor the fond hope that someday in the future you are taken into custody, tortured until you confess to sexually molesting small children, and are tried before a military tribunal that accepts your confession-under-torture as proof of guilt.

Perhaps Obama pardoned the wrong turkey.

Posted by: sasquatchbigfoot | November 24, 2010 3:01 PM | Report abuse

At no place in this column is there any evidence that the information gathered could not have been gathered using normal interrogation techniques. The only thing in this article that backs up that assessment is the Judge's words that 'the government felt' the only way to get the info was enhanced interrogation. 'The government felt'. That would be the Bush government, which displayed utter incompetence about legal matters and about interrogation. Thus, if they felt the enhance techniques had to be used, then most likely they weren't needed at all.

But this is all a moot point. Pouring gasoline on them and lighting them on fire may have gotten the information too. But, like the techniques authorized by the Bush administration, it is illegal. Waterboarding is illegal under intertnational law, law that we have supported, law that we have used to prosecute others for war crimes against our people. The enhanced techniques OKed by the author, authorized by the administration, and carried out by the agents constitutes a war crime, and all involved in the afore-described chain should be prosecuted as war criminals, including the author. In fact, I question why the Post would allow a war criminal column inches in their paper.

Lastly, the main reason Theissen is a profound idiot is that none of this matters. The legality and effectiveness of these techniques don't matter. What makes the Bush admin. decision tyo use enhanced techniques possibly the worst decision ever by a presidential administration is that we ceded the moral high ground. Never again can we express outrage at torture done to our soldiers (and civilians), as we have become that which we would rail against. The US tortures people. As such, we no longer have the right to complain when one of ours is tortured. And that is the most critical wound Bush and his fellow criminals inflicted on this country. The world is not going to know lasting peace... humans are a warlike species. The US will be involved in other conflicts, and through the actions of the previous administration, we have implicitly OKed the torture of our soldiers in the future. So, if we have to go into Iran, and they choose to waterboard captured soldiers, this is perfectly acceptible method of interrogation according to our government.

I would add that by not prosecuting Bush and the other war criminals, the Obama administration has added their implicit OK for our soldiers to be tortured in the future.

Posted by: jalabar1 | November 24, 2010 3:10 PM | Report abuse

Funny, we were able to try convict the Rosenbergs (Soviet Spies in the early 1950's) without resorting to torture. I'm curious why it now seems so necessary to people like Thiessen.

Posted by: gregdn | November 24, 2010 3:40 PM | Report abuse

Theissen is a proponent of secret trials where the results of the trial are known, but not the content of the proceedings, which are kept secret for 'national security'. Theissen prefers a dictatorship over an open democracy.


Posted by: LeftGuy | November 24, 2010 5:21 PM | Report abuse

I'll boil it down for most of you: Theissen likes the miltary commissions because we get to torture the suspects that way.

Posted by: baldinho | November 24, 2010 5:53 PM | Report abuse

Funny, we were able to try convict the Rosenbergs (Soviet Spies in the early 1950's) without resorting to torture. I'm curious why it now seems so necessary to people like Thiessen.

Posted by: gregdn
==================
Unlike the Islamoids, the Jewish-American spy cell valued their lives..or at least some when threatened with being fried in the electric chair in months (in the days before endless death penalty appeals) ...sang like birds. The Greenglasses gave up their relatives the Rosenbergs in short order. They gave up their handler at the Soviet Embassy. They gave up anyone else working at Los Almos in the Jewish community with ties to communism.
All they asked was not to be marched off and fried.

The Gleenglasses were none to happy about the plausible threat as well that their children would be taken and likely raised by a good patriotic family (likely Christian).

Had they not folded, because the high strategic threat the Rosenberg-Greenglass betrayals caused - it is likely the US would have sanctioned beating it out of them as the next step. But the Greenglasses folded and told all.

Posted by: ChrisFord1 | November 24, 2010 11:53 PM | Report abuse

The crucial phrase in the current essay is "trying terrorists." Clearly, Thiessen believes that some persons are guilty before they are tried. And when they are found not guilty, they must in his opinion be guilty. His middle name must be Kafka.

Posted by: mikehaas | November 25, 2010 9:52 AM | Report abuse

Thiessen's argument begs this question: Why have a trial at all? If, as he so strongly believes, Ghailani would have been readily convicted by military tribunal, the actual trial would only be for show, the conclusion foregone.

Since we have already debased ourselves by incarcerating people for years without proof of crime, and torturing them, against every international law, what would we have to lose by simply taking the Gitmo prisoners to a back lot and putting a bullet in their head.

That wouldn't be justice of course, but in Thiessen's twisted world, it probably suffices.

Posted by: joachim1 | November 25, 2010 11:37 AM | Report abuse

Thiessen, how many Guantanamo inmates have been indicted by military commissions? Answer, one. He was an Australian sheep shearer who plead guilty so that he could return home.

But the larger point is how many might have been brought before a military commission had they not been tortured and hence been ineligible in any court, military or otherwise.

I remain appalled that Thiessen, the chubby torture boy, is given a column by the Post.

His primary source on Guantanamo, a former Navy IG, retired in 2005. Now, how current and authoritative is that?

Bottom line is one/one inmate plead or was convicted. That's a real indictment of the rule of law, and isn't that what it's all about?

Posted by: harper-d | November 25, 2010 4:32 PM | Report abuse

How about we take all the detainee's, tie anchors to them and drop them in the gulf. Would we be any worse off? How many terrorist have we exchanged for US POW's? Zero, they behead US POW's. You say the Muslim world would hate us. They probably would be thankful not to have them shipped back to their own countries. People who carry out clandestine operations, not in a countries military uniform is a spy. You get as much usable intelligence as you can, then you either trade them, if they have value or off them if they don't. If you want precedence, please read your history regarding British General John Andre. You remember him, he's the guy helping old Benny Arnold and got caught. He was righteously interrogated, righteously fed, then righteously hung. He was denied death by firing squad, as was the custom for military men of the time but, he was caught in civilian clothes and was thus a spy and would be hung like a spy. Codling terrorist's is bad policy. Like most esteemed minds of the past, your fighting today's war with the last war tactics instead adapting to fight today's war. Stop with the lawyers and focus on the problem.

Posted by: elcigaro1 | November 25, 2010 10:31 PM | Report abuse

Why is it that terrorist prisoners-of-war are supposed to received more rights than our own armed service personnel. They are subject to the Uniform Code of Military Justice (USMJ), and tried in the courts martial. They are not accorded the right to civilian criminal trials. The "detainees" are. Something is rotten with that kind of thinking.

Posted by: sailhardy | November 26, 2010 8:53 AM | Report abuse

We are not at war with any sovereign nation. The Bush Administration's "War On Terror" (formerly known as the Global War on Terror) is a misnomer because one cannot declare war on a tactic. Thus the crimes perpetrated by the 19 saudis on 9/11 were just that, CRIMES.

Afghanistan, nor Iraq, attacked the USA so we are, reiterate, not at war with any sovereign nation. We have been criminally assaulted. Perpetrators once captured and arrested should be tried within the US Justice system with all the rights and responsibility of court proceedings.

Infiltrate 'em, stop 'em, grab 'em, and prosecute 'em. How many folks you know have escaped from Pelican Bay? _________________________________________________
Posted by: elcigaro1 | November 25, 2010 10:31 PM - who wrote:
"Like most esteemed minds of the past, your (sic) fighting today's war with the last war tactics instead adapting to fight today's war. Stop with the lawyers and focus on the problem.
---------------------------------------

Interesting perspective, you say use up to date tactics yet you cite an incident from the Revolutionary WAR (1776-83) once again equating an attack precipitated by a Criminal Organization with a declared war against a sovereign nation.

Using intelligence (especially humint), apprehension and prosecution sends a message to the world that the USA will not give in to the terrorist agenda. The goal of the terrorists? To damage confidence in our nation, to inspire enough fear in the populace that we will surrender our civil liberties in the name of safety and to drain the financial resources of our nation.

We need to be smarter than they are, we need to make the regions they operate from emotionally and financially untenable from the perspective of the region's residents, and we need to let them know WE ARE NOT AFRAID OF THEM.

We are the US of A, for crying out loud. Isn't it time for us to stop cowering and whining and go about doing what we do as if we are the Big Dogs of the World we claim to be.

Posted by: larrybellinger | November 27, 2010 4:33 PM | Report abuse

I get calls from the WaPo circulation sales team every couple of months asking "do you want to start up your print subscription with us again?" Each time, I tell them "I'll start up my print subscription once the WaPo fires torture apologist Marc Thiessen."

Having grown up here, I love the Washington Post....but I will not go out of pocket for an organization that gives a national platform to execrable torture-apologists like Thiessen. And, of course, here he is again, defending "enhanced interrogation," or for those of us who aren't completely full of it, "torture."

So - you keep defending torture here, and people like me will vote with their wallets and keep spending our dollars elsewhere.

Posted by: chop1 | November 30, 2010 1:33 PM | Report abuse

Your pomposity intrigued me enough to look up your qualifications, Marc, and I suppose I wasn't surprised to learn that you're not only not an alumnus of some Ivy League law school, you're not a lawyer at all. The other data I managed to locate displayed no other relevant background that even suggests you make your outrageous comments with any authority. You're the new, specious, commentator entrepreneur, whose skills, such as they are, amount to memorizing facile platitudes and "debating" your betters, all of whom, unsurprisingly, disagree with you. The only redeeming feature I can discern about your personal history is your mother, who tossed Molotovs at the Nazis. Something tells me you'd cut and run under those circumstances. The fruit (that's you) certainly fell far from mom's tree. Say hi to for me, though, when she tucks you into bed tonight. You jackwagon.

Posted by: johngladsd | November 30, 2010 6:43 PM | Report abuse

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