Bush-Cheney Use of Torture Derails Ghailani Prosecution

This is how George W. Bush and Dick Cheney got Ahmed Khalfan Ghailani, suspected of involvement in the bombing of two US embassies in East Africa in 1998, off hundreds of murder charges: They had him tortured.

Ghailani was convicted Wednesday of conspiracy to damage US government property, for which he could well face life imprisonment, but was acquitted of murder charges stemming from the deaths caused by the blowing up of the embassies.

The US right wing is jumping up and down and denouncing Attorney General Eric Holder for trying Ghailani in a civilian court instead of in a military tribunal, and implying that he got off because civilian law is more lax than that of the tribunals would have been.

For instance, Rep. Peter T. King (R-NY) thundered, “This tragic verdict demonstrates the absolute insanity of the Obama administration’s decision to try Al Qaeda terrorists in civilian courts.” King, defended Bush’s commitment to torturing people, saying “Bush deserves credit for what he did.” King should be aware that advocating war crimes itself was considered a crime at the Nuremberg trials.

In fact, the government case against Ghailani was undermined precisely by Bush and Cheney and their foaming-at-the-mouth supporters on the Right, which increasingly deserves to be called simply American Fascism. The case was undermined by the use of torture.

When Bush admitted in his memoirs to torturing people, he may as well have just grabbed the key from Ghailani’s prison guard and stuck it in the jail door and yelled for the Tanzanian to make a run for it.

Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who in turn provided the most damaging testimony against Ghailani.

As FDL perceptively wrote, it is possible that Abebe’s own testimony against Ghailani was itself coerced.

On Oct. 5, Judge Lewis Kaplan [pdf] excluded Abebe’s testimony, on the grounds that it was a a fruit of a poisonous tree, i.e. was only available to the prosecution because Bush had had Ghailani tortured (and maybe had had Abebe tortured, as well!)

That was why Ghailani could not be convicted of murder, as he from all accounts ought to have been. Had his connection to Abebe been discovered by ordinary questioning or by good police work, then the latter could have freely taken the witness stand. In fact, it seems to me very likely that Abebe would in fact have been discovered in other ways– from the record, e.g., of Ghailani’s cell phone calls, or even just from his own account of his activities.

King’s and others’ assertion that a military tribunal could have gotten a conviction on the murder charges is simply incorrect, as Judge Kaplan himself pointed out (h/t FDL):

‘ It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding.

Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the “MCA”). Evidence in such proceedings is governed by the Military Commission Rules of Evidence (“MCRE”). U.S. DEP’T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.).

MCA 948r(a) and MCRE 304 preclude or restrict the use of “statements obtained by torture or cruel, inhuman, or degrading treatment,” and evidence derived threrefrom, and could require exclusion of Abebe’s testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.’

The military tribunal still has to operate within the terms of the US Constitution, however much Bush and Cheney (and Peter King) may despise that document, and it is the constitution that would force any judge, military or civilian, to invalidate evidence obtained by torture.

It isn’t the fault of American civil justice, still among the best and most upright in the world. It isn’t Obama’s fault, or Eric Holder’s fault. It is the fault of the profound betrayal of American law and values by vapid thugs who want to take us back to absolute monarchy, to bills of attainder, star chambers, divine right of kings, and drawing and quartering and breaking at the wheel.

King and other members of Congress, who wish to make an end run around the constitution with their ‘military tribunals,’ are essentially violating the separation of powers, since the artificial tribunals operating beyond the bill of rights are a way for the legislative and executive branches to sidestep the judicial system so as to administer arbitrary ‘justice.’ This way of proceeding is essentially a bill of attainder:

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not.”

The actually existing constitution of the United States of American forbids bills of attainder (Article I, Section 9 ), as an abuse of the British Old Regime. If Tea Partiers had any integrity and actually stood for the values that their tricorner hats imply, they’d be denouncing arbitrary tribunals themselves.

Terrorism, like any other social pathology, can best be fought with a rule of law, not by trampling on the very framework of our democratic system. We don’t have to become al-Qaeda to fight al-Qaeda. In fact, in America’s struggle to win over the Muslims of the world, adherence to our constitution is among our most effective weapons. Gallup found that:

‘ When asked what they admire most about the West, citizens of Muslim countries ranked technology first and liberty and democracy second. They expressed widespread admiration for the freedom of expression and assembly, rule of law, and government accountability they see in the West. ‘

Muslims already know all about military tribunals and torture and arbitrarily tossing people in jail. They are yearning for something better, which we, at least used to, have.

Bush and the Bushies screwed up, and they are blaming it on the liberties enshrined in the constitution by men a thousand times their betters, for which generations of Americans have fought and died, and whose memory is being desecrated by the sad likes of George W. Bush, Richard Bruce Cheney, Peter King and the rest of our would-be Anglophone Francisco Francos.

23 Responses

  1. On the whole, you’re right, but it has nothing to do with fascism. Fascism involves a mass movement, not just an authoritarian or oppressive government.

    Be precise, Professor.

    • I think the Tea Party thinks it is a mass movement. Any of their leaders – except the now-ignored Ron Paul – come out against military tribunals?

      The plan is to build worship for the parallel system of military courts as being superior to the corrupted secular humanist civil courts, so that when they get the White House back, they can use it to eliminate the enemies that they really care about: you and me.

  2. .
    As with many things, T-Partiers come in many varieties. For some, Newt Gingrich, Dick Armey and Pete King might serve as archetypes. For me and my fellow travelers, we prefer to hold up Ron Paul or Alan Keyes as bearers of our standard.

    As a Constitutionalist/ T-Partier, I am outraged at the US Government engaging in torture. I am bewildered by my neighbors who rationalize its use.

    I’m also not so keen on the special tribunals set up to skirt the bedrock; bills of attainder; bills restricting the construction of houses of worship; or the employment of Mercenaries to

    to subjugate civilian populations in Afghanistan and Iraq.

    Democracy is a work in progress. As an experiment, there are salients in the wrong direction, and it is up to us to point out these errors, and to demand their rectification.

  3. You are part of the problem, yourself. The whole tone of this article suggests that the man was guilty and the testimony given under torture was reliable.

    The point is that there is no evidence that he was guilty.

    You seem to be suggesting that torture is not only morally reprehensible but, worse, liable to prevent convictions. And that the problem in this case is the lack of a conviction. Bush and Cheney would not disagree: to them, as to you, “facts” elucidated under torture are, nevertheless, facts and corroboration from a man tortured or threatened with torture is corroboration, yet.

    The one thing Bush/Cheney cannot be accused of in this case is ‘ruining’ a prosecution.

    The likelihood is that this torture victim played no part in the embassy bombings and that, whilst he was being tortured and a show trial prepared, the actual perpetrators carried on planning their next attack.

    The next logical step in law would be to prosecute those responsible for the torture. Instead the disease is spreading: the poison from Guatemala, Colombia and Vietnam is well established. Torture is as American as apple pie, as familiar in the “justice” system as Mom, herself. What price the Lubyanka now?

    • Torture was as American as apple pie long before our time. That’s why there were things like the Miranda rule. Torture was a routine practice for American cops in the past – but we ignore that sorry history now because, well, so many of the supposed threats they were fighting turned out either to be phantoms, or were assimilated into normal American politics by progressive victories.

      But aren’t we always told that America was “better” in the past?

      • “Torture was as American as apple pie long before our time”… because bad cops in corrupt departments illegally worked over their prisoners and got away with it because the legal system trusts police more than the average person?

        That’s ridiculous. What the last George Bush administration did was to make torture… not respectable, but legal and permissable. It’s completely different from dirty cops getting away with abuses!

  4. “Bush and the Bushies screwed up, and they are blaming it on the liberties enshrined in the constitution by men a thousand times their betters, for which generations of Americans have fought and died, and whose memory is being desecrated by the sad likes of George W. Bush, Richard Bruce Cheney, Peter King and the rest of our would-be Anglophone Francisco Francos.”

    This is what makes the Obama Administration’s failure to prosecute Bush and Cheney for war crimes such a travesty. Now, we are left not with clear-cut anti-torture laws but with esoteric arguments on the subject with pro-torture freaks like Alan Dershowitz.

  5. Americans — some of us — are yearning for a government that does not break the law itself (as by torture), which punishes those who do (Bush, Cheney, et al.), and which seeks to use its courts (and court-like commissions) to secure justice rather than seeking to punish its enemies. But others seek almost the opposite.

  6. “Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who in turn provided the most damaging testimony against Ghailani. ”

    Are you saying that torture works? My understanding was that, in addition to the legal and moral prohibitions against torture, it DOES NOT work–people say what they think the torturers want to hear.

    • Maybe it’s just a matter of semantics: Torture, as in “the purpose of torture is torture,” may very well not be intended to produce “testimony,” only moans. Who cares whether the bubbling flood of spittle, tears and blood, and a tumble of words is “true” or not?

      And “testimony” is normally “a declaration by a witness under oath, as that given before a court or deliberative body.” Which for very good reasons is subject to cross-examination and the power of the finder of fact to weigh its truth or falseness.

      But hey, let us recognize that there’s a Beast side to humans, that gets off on the “24” approach to life, that hangs people up over slow fires, and closes the Iron Maiden so exquisitely slowly, and glories in the shrieks elicited by the turn of the screw or the crank on the rack wheels or the burning of flesh by hot steel or bamboo slivers beneath the nails or all the nearly infinite inventive ways humans have found to TORTURE one another for fun, profit, tribal satisfaction or simple boredom.

  7. Professor:

    I agree with your take on torture, but AG Holder cannot be excused for his foolishness in bringing this case in civilian court. First, he should have known that information obtained by suspect methods would be disallowed into evidence; worse, he should have known that any secondary information flowing from suspect methods would be disallowed (I’m referring to the arrest and confession of Ghailani’s source for the explosives.) Either proposition is black letter law.

    What is stunning is how predictable–and predicted–this trial result was. In my view the issue of torture has long been incorporated into the government’s legal strategy—by using military commissions. I may not always agree with the government’s modus here, but as a lawyer, I get it. But the question stands: Why would Holder bring this case? I don’t know him, but there are several possibilities:

    1. Incompetence
    2. Partisanship-by-Lawsuit: if the U.S. had prevailed, the administration talking point would be that military commissions were unnecessary; if the U.S. failed, it would further highlight Bush era malfeasance.

    Professor, in cases like these, civilian trials look better on paper than they do in practice. Consider this case: if Ghailani (or KSM for that matter) had been found innocent, do you think the US simply would release him?

    Unlikely, to say the least. (Indeed, Holder has acknowledged as much in response to questions about what would happen if KSM were found innocent in a civilian trial.)

    What’s in it for the defendant other than the chance to make a speech? If he loses, it’s prison for life; if he wins, it’s back to indefinite detention as an enemy combatant (the judge in Ghailani noted that the US still retained this option), or a subsequent trial by military tribunal. I’m committed to rule of law, but exposing the civilian process as a sham is not the way to get there.

    Excoriate Bush for torture; excoriate him for military tribunals; but in these cases you have to leave the dance with the one that brought you–i.e., either you start the prosecution committed to civilian process (and obtain your evidence accordingly) or you proceed with a military tribunal–and obtain your evidence accordingly.

    There ain’t much in between.

  8. For one thing, what you’re noting here is a fundamental disconnection between two perceptions of justice. In a line not quoted from these same people, this acquittal was ascribed as a “miscarriage of justice.” From their perspective, interfering with a lynching would be a miscarriage. It is very much the same thing, and when that is the starting place for someone’s thinking, there is very little you will be able to say to influence them.

    This gets back to the rule of law business, and the post a week ago that provoked the question of WHY, oh why, hasn’t Dubya been indicted for war crimes (torture, etc)? The answer is, because the politics would never condone it. Study just out from Heritage Institute (OK, we might question the source, but itd be better to just look at the methodology, since it was not the Saban wing), that with a very pointed question drew a 60% agreement from the public on the idea of US exceptionalism in the world. It would appear that might be our starting point in terms of attitude.

    Rule of law says some little piggies are NOT more equal than other little piggies. If someone skates a minute past the statute of limitations, they’re as free as when I stay right at the speed-limit and the cop cannot arbitrarily saying 70 mph was a technicality in my particular case. When things become arbitrary, people cannot do anything without wondering if its legal. That’s when freedom is lost.

    To be more realistic about this trial, and why the govt will not be putting more such people through the civilian legal system, the enemy is us (at least collectively). Sadly, putting a bit of arbitrary fear about may also figure into the establishment’s needs.

    • “This gets back to the rule of law business, and the post a week ago that provoked the question of WHY, oh why, hasn’t Dubya been indicted for war crimes (torture, etc)?”

      The answer seems to be that any administration that tries to prosecute its predecessor(s), will find itself the target of prosecution by the next administration of the opposite party. Even though some are more guilty than others, every one has done something that at least would make good theater in a courtroom.
      Congress, however, could run up some good investigations that would leave the Justice Department little alternative but to prosecute. Not sure why they have not done this. But over the next two years we will see the Obama administration investigated, by Darrell Issa and others, until hell won’t have it. Most of it will be “fishing,” but they may find enough real stuff to keep the public interested. And Fox and Limbaugh will beat the drums continuously.

      • Your essential observation is right, but isn’t the reality otherwise?

        Even tho Clinton pretty well played ball with the GOP on substantive policy issues, he ran into that impeachment business from the GOP faithful about actions that objectively had nothing to do with his performance as President: So much for forbearance. Have the Demos ever got credit from the GOP, even when the do as they are told? What is accommodation and compromise when it goes in one direction?

        The RIGHT way for Obama to handle this, if Rule-Of-Law is so sancrosanct, or that is our “aspiration” (a word I hear entirely too much of), is to allow some federal prosecutor to make the indictment, as provided for by law (or however a case is brought; there is a normal legal procedure for recognizing and bringing prosecutions).

        Once it all becomes official and a federal case has been made of it (as they say), Obama would issue a pre-emptive pardon along the lines of Ford/Nixon. He might politely say something about Dubya having “done his best under the circumstances”, and how “someone had to make a call and there was no one else to buck the decision to.” And that’d all be true: Bush, I’m convinced, did act in good faith. And this would be the sort of awkward/exceptional case a pardon would be legitimately, if still arguable, exercised with. It wasn’t the boy’s fault, that elected as a caretaker president, he found himself 9 months later, in totally over his head. That’s the reality, and we need to put all the rotten debris of his presidency behind us as such. There’s a relatively clean, R-O-Law way, and the way of denial and avoidance, which errodes the putative integrity of our system.

  9. This person from Zanzibar, as his family name indicates, al-Ghilani/al-Gilani/al-Ghaylani/al-Jaylani comes from a very Sufi-Shafi’i Sunni land full of incredible people of piety. Him joining the Deobandi Tablighi Jamaat is no surprise, as it is a well known fact that the Deobandi Tablighis infiltrate Sufi mosques in East Africa pretending to be Sufis, and speaking highly of Abdul Qadir Jilani [buried in Baghdad]. But, Pakistanis, especially back home in Pakistani areas of Punjab and Sindh and Kashmir, know very well that Deobandis are overwhelmingly of the same type as the reformist Salafis in.
    It is possible that after being influenced by the camouflaged wahhabism of the Deobandis, he went over to the even more extreme wahhabis.

    The old “taleban” were majority Deobandi, and now many of them have jumped on to the salafi/al-qaeda bandwagon.

  10. […] batting average? In part, because the evidence was contaminated by the Bush administration’s illegal torture policy: Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who […]

  11. Thank you Prof J. for calling the US Right what they are – Fascists! It’s time this was more widely recognised and spoken about.

    “The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in essence, is fascism – ownership of government by an individual, by a group, or by any other controlling power. Among us today a concentration of private power without equal in history is growing.”

    — President Franklin Delano Roosevelt

    More here: link to tinyurl.com

    • But then Tea Partiers would argue that fascism is statism, and that the poor misunderstood capitalists would not collaborate with fascism if the government had not been allowed to grow so powerful that it became necessary for their business interests to manipulate it. Because why should profit not be above the law, when all good Americans know that the law was created to protect “life, liberty and property” – not “life, liberty and the pursuit of happiness”?

      As long as we start with the premise that property is prior to government, then it is impossible to construct any society that regards humans as equal citizens regardless of their wealth. Therefore fascism simply is one of many tools available for the rich to reach their desired end state – permanent enshrinement of their naturally-growing monopoly on all forms of power. Was, say, the feudal ruling class of medieval Europe private, government, or military in nature? Our far right would jump up and down and say those alien noblemen were “big government”, but they in fact were fatcats who used their obligation to provide horses and arms to the common defense to obtain the reward of a monopoly on civil office. Halliburton and the mercenary corporations are working on their own road to that same end. If Hitler’s party/militia was viewed as a private venture, then certainly his goal was feudalism.

  12. The same mind-set is responsible for the disdain for the Fourth Amendment represented by the invasive TSA search procedures at airports, which the TSA asserted yesterday it would not change in any way – except perhaps for pilots, given the need for pilots to conduct airline business. Apparently passengers are not needed? The authorities lie and lie about the capabilities of the body-scan machines, conduct pat-downs on three-year-old children, lie about the effectiveness of the machines and now require “enhanced pat-downs” (i.e., thinly-disguised sexual assault) to intimidate dissenting passengers into submission. This is another entry point for fascism. We are conditioned to do whatever we are ordered to do, in the name of “security.” Just as convicting accused terrorists regardless of the evidence is for our “security.”

    And shame on Eric Holder for saying that even if the jury freed Ghailani, he would be held indefinitely anyway!

    • “The same mind-set is responsible for the disdain for the Fourth Amendment represented by the invasive TSA search procedures at airports…”

      There is no Constitutional right to fly on the airlines, or to travel on any other public conveyance. Most people apparently are willing to subject themselves to intrusive searches to reduce (it says here) the risk of being killed by terrorists. Those who are not willing to make this tradeoff, who value the right of privacy more than the privilege of flying, will find other means of transportation. Or will tell their Congresscritters that they would rather run the increased risk than be so intrusively searched, and if enough people do so, the rules will be changed.

      • And the congressman who leads a successful push to eliminated the gropes and pornoscans will be blamed for the next airline terrorist attack (whether or not the attack fails). And you can not say that most people are willing to participate in this bureaucratic BDSM. Intimidation is what secures compliance here, that and the fact that flying is the only realistic option for many journeys.

        Its strange, you’d think America would be proud of being the nation that pioneered aviation. It would be funny if they were the first to make it too degrading to use.


  13. Rep. King used to be the top supporter of the IRA in Congress

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