January 25, 2011

And Once Again, Reality Refutes Marc Thiessen

A few hours before President Obama delivers his State of the Union address Tuesday night, the state of America's terrorist detention policy will be laid bare in a Manhattan courtroom. Ahmed Ghailani, charged with 285 counts in the bombings of our embassies in Kenya and Tanzania, will be sentenced for one count of "destruction of government property"…

[T]he Ghailani case underscores the necessity of [Obama’s] quiet decision to change course and lift the ban he imposed after his inauguration on new military commission trials at Guantanamo.

The first Guantanamo Bay detainee to be tried in U.S. federal court under the Obama administration was sentenced to life in prison Tuesday for his role in the 1998 East Africa embassy bombings

Ghailani received the same sentence that he would have if he had been convicted on all counts. He "will never again breathe free air," [US Attorney Preet] Bharara said.

[T]he Ghailani case only showcases the strengths of the American justice system.  Ghailani received what was widely-perceived as a fair trial in which he was able to thoroughly challenge the government’s assertions that he played an integral role in the East African Embassy bombings.  At one point, evidence obtained by torture was properly excluded by the judge presiding over the case—a development that should have been lauded by all who support a criminal justice system based on the rule of law.  Instead, commentators such as Theissen and [Andrew] McCarthy decried the judge’s ruling and insisted the case should have been tried in a military commission so that Ghailani would have no chance of being set free.  That seems an especially odd argument to take seriously today—the day on which Ghailani was issued a life sentence for his crime...

Given the overwhelming success of civilian terrorism trials compared to their military commissions counterparts, it is disappointing that the Obama administration intends to go forward with new cases in the fundamentally flawed military commissions.  [Since the terrorist attacks on 9/11, federal courts have convicted more that 400 individuals of terrorism-related crimes, with a conviction rate of over 90%.  In that same time period, military commissions, suffering from one setback after another, have only convicted five, two of whom are free today.]  But the Obama administration should also take this opportunity to make a renewed effort to try Guantanamo detainees in federal courts, which remains its preferred venue for trying terrorism suspects.  Although Congress has placed some restrictions on the President’s ability to transfer Guantanamo detainees to federal courts for trial, the President still has the ability to move forward with cases if he has the political will to do so.  Along similar lines, the President should take concrete steps to more forcefully oppose any further congressional efforts to restrict his authority to transfer detainees out of Guantanamo.  President Obama remains committed to closing Guantanamo, and if he is serious about this commitment, he must take immediate steps to ensure that prosecutions of Guantanamo detainees move forward in tried and true federal courts.

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