Right-wing media suggest military commission would have been tougher on Ghailani - but experts disagree

››› ››› ERIC SCHROECK

Right-wing media have attacked the Obama administration over the civilian court trial of Ahmed Ghailani, suggesting that testimony by a "key witness" excluded by the civilian court would have been admissible in a military commission and resulted in further convictions against Ghailani. But 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.

Right-wing media attack Obama admin over verdict, suggest military commission would have accepted witness's testimony

Carlson: "In military tribunals ... all the evidence that was not allowed in the civilian court would have been allowed." On the November 19 edition of Fox News' Fox & Friends, co-host Gretchen Carlson discussed the Ghailani verdict and stated: "In military tribunals ... all the evidence that was not allowed in the civilian court would have been allowed."

Wash. Times: "[S]ome of the most damning evidence against [Ghailani] never made it to the courtroom." Attacking the Obama administration over the Ghailani verdict, The Washington Times stated in a November 18 editorial: "The Obama administration dispensed with the commission, the death penalty and any evidence it thought was 'tainted' by torture or otherwise did not pass muster. Mr. Obama unilaterally redefined previously legal 'enhanced interrogation techniques' as torture, and even though Ghailani was not waterboarded, some of the most damning evidence against him never made it to the courtroom."

Lowry attacks Obama administration over verdict and decision to try Ghailani in civilian court. In a November 19 New York Post op-ed, Rich Lowry wrote: "This was [Attorney General Eric] Holder's war on terror. He's losing it in a rout. The attorney general's obsession with bringing terrorists captured overseas to the US for trial in the civilian courts looks more willful and untenable by the day, as the edifice of his legal strategy collapses in a pathetic heap." Lowry further noted that the judge in the Ghailani case excluded testimony against Ghailani:

The judge proceeded to bar a witness whom the government had learned about through Ghailani's CIA interrogation. This "giant witness for the government," in the words of the prosecutors, sold Ghailani TNT. Even if the judge's ruling was too stringent, the tension between being captured and held in Ghailani's circumstances and tried like a civilian is inescapable.

If we're serious about protecting ourselves, we're never going to give all terrorists the Miranda warnings and immediate legal defense that our civilian justice system demands. That's why the Bush administration fell back on military commissions and Gitmo. Our civilian system is meant to protect Americans from the awesome power of the state, and all its protections shouldn't be afforded to enemy combatants waging war against us.

But numerous legal experts agree that a military commission likely would have thrown out witness's testimony

Salon.com: Key witness's testimony banned because previous administration "learned of his identity not through legal means." In a November 18 Salon.com op-ed, Glenn Greenwald noted that "[l]ast month, the federal judge presiding over the case, Lewis Kaplan, banned the testimony of a key witness because the Government under George Bush and Dick Cheney learned of his identity not through legal means but instead by torturing Ghailani (and also possibly coerced the testimony of that witness)."

NY Times: "Judge Kaplan strongly suggested ... that a military commission judge would have excluded that testimony, too." As The New York Times reported on November 18, Judge Lewis Kaplan "refused to allow prosecutors to introduce testimony from an important witness apparently because investigators discovered the man's existence after interrogators used abusive and coercive techniques on Mr. Ghailani." The Times further reported that "[i]n his order rejecting the witness, Judge Kaplan strongly suggested in a footnote that a military commission judge would have excluded that testimony, too, pointing to restrictions against the use of evidence obtained by torture in military trials." From the Times:

Moreover, many observers attributed any weakness to the prosecution's case to the fact that the Judge Lewis A. Kaplan of Federal District Court, who presided over the trial, refused to allow prosecutors to introduce testimony from an important witness apparently because investigators discovered the man's existence after interrogators used abusive and coercive techniques on Mr. Ghailani.

Much of the criticism of the verdict was premised on the idea that such evidence would have been admissible in a commission trial. [Rep. Lamar] Smith [R-TX], for example, pointed to the exclusion of that evidence as undercutting the idea that foreign terrorists "can be adequately tried in civilian courts."

"The judge in this case, applying constitutional and legal standards to which all U.S. citizens are entitled, threw out important evidence," he said. "The result is that the jury acquitted on all but one conspiracy count."

But opponents of civilian trials contended that such criticism was based on a faulty premise. In his order rejecting the witness, Judge Kaplan strongly suggested in a footnote that a military commission judge would have excluded that testimony, too, pointing to restrictions against the use of evidence obtained by torture in military trials.

Kaplan: "It is very far from clear that Abebe's testimony would be admissible if Ghailani were being tried by military commission."Indeed, as Kaplan wrote in his October 14 order to exclude witness Hussein Abebe's testimony, "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." From Kaplan's ruling:

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.

U.S. Military Code states, "No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment...shall be admissible." According to the Manual for Military Commissions, 2010 edition: "No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment...shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made." From the Manual for Military Commissions:

Rule 304. Confessions, admissions, and other statements

(a) General Rules

(1) Exclusion of Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a trial by military commission, except against a person accused of torture or such treatment as evidence that the statement was made.

[...]

(5) Derivative Evidence.

(A) Evidence Derived from Statements Obtained by Torture or Cruel, Inhuman, or Degrading Treatment. Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that--

(i) the evidence would have been obtained even if the statement had not been made; or

(ii) use of such evidence would otherwise be consistent with the interests of justice.

Biden: "The same evidence would have been inadmissible" in a military tribunal. On the November 18 edition of CNN's Larry King Live, Vice President Joe Biden discussed the Ghailani verdict and said: "Look, the fact of the matter is what's going to happen to him, he's going to go to jail for a minimum of 20 years to life. Had he been tried in a tribunal, which some of the critics say he should have been tried in a military tribunal, the same evidence ... would have been inadmissible." From Larry King Live:

KING: The former Guantanamo detainee is tried on a -- in a civilian court. He's acquitted on all but one of 280 charges. The other side says he should have been found guilty on all of them. One side said, though, if it's a result of terror, you can't introduce it in court.

Where do you stand?

JOE BIDEN: Well, if it's a result of torture -

KING: Torture, I'm sorry.

JOE BIDEN: Look, the fact of the matter is what's going to happen to him, he's going to go to jail for a minimum of 20 years to life. Had he been tried in a tribunal, which some of the critics say he should have been tried in a military tribunal, the same evidence -- and they voted for the change in the rule of the tribunal, the same evidence would have been inadmissible.

Goldsmith and Wittes: Critics have claimed that military commission would have allowed testimony, "but that is very probably wrong." In a November 19 op-ed, former Bush assistant attorney general Jack Goldsmith and Brookings senior fellow Benjamin Wittes - both members of the Hoover Institution's Task Force on National Security and Law - wrote that the assertion that the witness testimony would necessarily have been included in a military commission "is very probably wrong." Goldsmith and Wittes argued that "[w]hile the Ghailani verdict does not argue for military commissions over civilian trials, it does highlight the attraction of military detention without trial at all." From the op-ed:

The government had a difficult time convicting Ghailani in large part because presiding Judge Lewis Kaplan excluded a key witness that the government had acknowledged it knew about through coercive interrogations. Many critics of civilian trials claim that this problem would not have occurred in a military commission, but that is very probably wrong. The legal standard for excluding such evidence in military commissions would depend on the military judge's sense of the "interests of justice." The government would be foolish to rely on military judges' willingness to admit evidence obtained - even in a derivative fashion - as a result of coercion. There is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a commission.

Wittes and Chesney: "[T]he same evidentiary problems that impeded his prosecution in federal court would likely have arisen in a military commission as well." In a November 17 blog post, Wittes and national security law scholar Robert Chesney wrote that "the same evidentiary problems that impeded [Ghailani's] prosecution in federal court would likely have arisen in a military commission as well." They further wrote: "There is no particular reason to think that the government would have gotten in before a commission the key witness that the court in New York excluded. The simple reality is that one cost of interrogating Ghailani in the CIA's high-value program over a long period of time is to make any subsequent trial difficult." From their post:

[I]t really is not clear that prosecutors would have fared better in a military commission. There is a fairly pervasive myth that military commissions represent the tough option, while federal courts represent the soft, wussy option. You know the trope: Military commissions represent a war mentality (tough, manly, conservative), while federal courts represent a pre-9/11 law enforcement mentality (weak, emasculated, liberal). The gross underperformance of the military commissions over many years has not shaken the trope, nor has their quiet development towards greater due process norms. There is no particular reason to think that the government would have gotten in before a commission the key witness that the court in New York excluded. The simple reality is that one cost of interrogating Ghailani in the CIA's high-value program over a long period of time is to make any subsequent trial difficult.

Rep. Harman: "[M]ost people believe that even in a military tribunal that kind of evidence wouldn't have been admissible."Discussing the Ghailani verdict on the November 19 edition of Fox News' America's Newsroom, Rep. Jane Harman (D-CA) stated: "Let's understand that that testimony which the judge disallowed but which federal prosecutors pushed to be allowed was coerced by torture. And most people believe that even in a military tribunal that kind of evidence wouldn't have been admissible. The practices that were used to get that evidence have been discontinued, and that is a good thing."

Georgetown law professor: "Military trials also preclude the use of involuntary confessions." Discussing the Ghailani verdict in The New York Times' Room for Debate blog, Georgetown law professor David Cole wrote: "Military trials also preclude the use of involuntary confessions - as indeed must any system of justice that could even hope to be called fair."

NIMJ president: Assuming evidence would have been allowed in military commission "does a tremendous disservice to the military officers who are serving as judges in the military commissions." Eugene Fidell, president of the National Institute of Military Justice (NIMJ), stated on the November 18 edition of PBS' NewsHour: "The assumption that that evidence would have come in, in a military commission, I think, does a tremendous disservice to the military officers who are serving as judges in the military commissions." From NewsHour:

FIDELL: But, quite seriously, I think that the -- the premise of Judge Mukasey's comment just now was that this would have had a different outcome in a military commission. And I'm in no way persuaded of that. I think you have to assume -- and the key sort of legal judgment that Judge Kaplan made in the U.S. District Court in Manhattan was to suppress some evidence that seemed to be the fruits of torture or abusive treatment of a detainee.

The assumption that that evidence would have come in, in a military commission, I think, does a tremendous disservice to the military officers who are serving as judges in the military commissions.

I have no doubt that the same kind of careful consideration that Judge Kaplan, who has been a judge for 16 years, gave to that issue would have been given by the military judges in the military commissions.

Washington Post: "[T]he star witness rejected by a federal judge probably would have been excluded by the military court as well."In a November 19 editorial, The Washington Post stated: "[T]here is no guarantee that a military commission, the preferred alternative of many critics, would have produced a tougher result. Such commissions are not apt to admit statements coerced through torture, so the star witness rejected by a federal judge probably would have been excluded by the military court as well."

Greenwald: It is "simply untrue" that "the key witness would not have been excluded had Ghailani had been put before a military commission at Guantanamo." In November 18 post, Greenwald wrote: "[T]here is the false premise -- found at the center of every attack on the Obama DOJ's conduct here -- that the key witness would not have been excluded had Ghailani had been put before a military commission at Guantanamo. That is simply untrue." Greenwald continued (emphasis in original):

The current rules governing those military tribunals bar the use of torture-obtained evidence to roughly the same extent as real courts do. Anyone who doubts that should simply read Rule 304(a)(1) and (5) of the Military Commissions Manual, found on page 205 of the document:

[304(a)(1)] No statement, obtained by the use of torture, or by cruel, inhuman, or degrading treatment. . . . whether or not under color of law, shall be admissible in a trial by military commission . . . .

[304(a)(5)] Evidence derived from a statement that would be excluded under section (a)(1) of this rule may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection . . . .

The only exceptions to those exclusionary rules are essentially identical to those used in the judicial system, which were applied by Judge Kaplan but found to be inapplicable ("the evidence would have been obtained even if the statement had not been made; or [] use of such evidence would otherwise be consistent with the interests of justice").

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