Doocy asserts that excluded testimony would have been included in military commission

Doocy asserts that military commission would have included witness's testimony that criminal court judge excluded. On the November 18 edition of Fox News' Fox & Friends, co-host Steve Doocy stated that “there was a witness who was ready to testify - 'yeah, I sold Mr. Ghailani all of these explosives that blew up the U.S. embassy in Tanzania. I was going to say that' but the judge ... threw that out.” Doocy then asserted: “Now, in a military tribunal, that particular evidence would still be admissible. So that guy would have been convicted on all of the conspiracy for murder charges and the murder charges as well.” Fox made no mention of why the witness was barred from testifying.

In fact, judge “strongly suggested” that 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)."

Washington Post: “The reality is that the torture techniques employed by the Bush administration...are what's hampering Ghailani's prosecution.” In an October 15 post on The Washington Post's Plum Line blog, The American Prospect's Adam Serwer noted:

The reality is that the torture techniques employed by the Bush administration, not the law, are what's hampering Ghailani's prosecution. The case against Ghaliani is going forward, which suggests [former Bush official Marc] Thiessen's breathless characterization of the affair as a “catastrophe” is absurd. The “catastrophe” is that the process by which terrorists can be brought to justice has been jeopardized by the torturous interrogations Thiessen is so fond of.

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, 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.

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”).

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.

Fox & Friends declares that Ghailani was “almost a free man” and asks if trial is a “victory for terrorists”

Kilmeade: “He looks like he's still going to get 20 years, but what message is that sending to future terrorists?” On the November 18 Fox & Friends, co-host Brian Kilmeade stated that Ghailani “looks like he's still going to get 20 years, but what message is that sending to future terrorists?” Kilmeade also called the verdict an “embarrassment.” On-screen text stated that Ghailani was “almost a free man” and that the case was a “civilian trial failure.”

But 20 years is only the minimum sentence, and prosecutors intend to seek life in prison

Prosecutors reportedly will seek life sentence for Ghailani. As The Washington Post reported on November 18, “Ghailani could be sentenced to life in prison and faces a minimum of 20 years, according to the Justice Department,” and “Ghailani's sentence will be imposed by Kaplan, and prosecutors in New York said they would seek life in prison.”

Obama administration official: Ghailani “will very likely be sentenced to something closer to life.” On November 18, ABC News' Jake Tapper quoted a senior Obama administration official as saying that Ghailani “will very likely be sentenced to something closer to life. (The judge can, and very likely will, take into account things that the jury did not, and he can and will consider conduct that the jury found him not guilty of -- e.g., murder). He will never be paroled (there is no parole in the federal system). There are very few federal crimes that carry a mandatory MINIMUM of 20 years. What that means is that he was convicted of a crime that is a very big deal.” From Tapper's report:

Though some critics and observers are suggesting the Ghailani verdict -- he was acquited [sic] of all but one of more than 280 charges -- weakens the president's call for civilian criminal trials for Guantanamo detainees, a senior administration official pushes back:

“He was convicted by a jury of a count which carries a 20-year minimum sentence,” the official says. “He will very likely be sentenced to something closer to life. (The judge can, and very likely will, take into account things that the jury did not, and he can and will consider conduct that the jury found him not guilty of -- e.g., murder). He will never be paroled (there is no parole in the federal system). There are very few federal crimes that carry a mandatory MINIMUM of 20 years. What that means is that he was convicted of a crime that is a very big deal.”

“So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and -- despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one -- not one -- security problem associated with the trial.”

“Would it have been better optically if he had been convicted of more counts? Sure. Would it have made any practical difference? No.”

Military commission would not have necessarily handed out harsher sentence

CAP: “Criminal courts hand out tougher sentences than military commissions.” According to a January study by the Center for American Progress, of the three terror suspects who had been tried and convicted by a military commission at the time, two have already been released from prison and one received a life sentence. Further, CAP studied cases tried in criminal courts similar to the military tribunal convictions and concluded, “Criminal courts hand out tougher sentences than military commissions.” From the CAP study:

The sample size of military commissions' sentences is very small, but there are some analogous cases in the criminal justice system to compare the length of sentences in the two forums. The allegations against David Hicks in a military trial were quite similar to those leveled against John Walker Lindh--the so-called American Taliban--in a criminal court, while comparable charges to the material support for terrorism conviction for Salim Hadman can also be found in criminal courts.

Hicks pleaded guilty to the charge of material support for terrorism with the underlying allegations that he trained at an Al Qaeda camp in Afghanistan and that he was an armed participant in numerous engagements with American and Northern Alliance forces. Lindh pleaded guilty to serving in the Taliban army and carrying weapons. Hicks received a nine-month sentence while Lindh got 20 years. Even if all of the time Hicks served prior to his plea bargain is counted, his total time in custody was only six years, less than one-third of the sentence Lindh received.

Hamdan was convicted of providing material support for terrorism for being Osama bin Laden's chauffer. In 2006, Ali Asad Chandia was convicted in a criminal court of material support for terrorism for driving a member of Pakistani extremist group Lashkar-e-Taibi from Washington National Airport and helping him ship packages containing paintball equipment back to Pakistan. Hamdan received a five-month sentence while Chandia got 15 years. Even if all of the time Hamdan served prior to his conviction in a military commission is counted, his total time in custody would be only eight years.

At most, Osama bin Laden's driver got a little more than half the sentence from a military commission that a criminal court doled out to someone for driving a low-level Pakistani extremist.

Fox's Herridge: “Two terrorists convicted at Guantanamo in the last six months got a maximum of eight years in prison” while American tried in federal court for threatening South Park creators “is looking at up to 30 years.” On the November 11 edition of Fox News' America's Newsroom, Fox News correspondent Catherine Herridge reported that "[t]wo terrorists convicted at Guantanamo in the last six months got a maximum of eight years in prison." Herridge reported that “a detainee who confessed to helping Osama bin Laden escape from Tora Bora was given just two years under a plea agreement with the military.” Herridge also contrasted the case of Guantanamo detainee Omar Khadr, a 15-year-old who was sentenced to eight years for killing an American special-operations medic, with Zachary Chesser, an American who was prosecuted this year in a Virginia federal court. Herridge reported that “Chesser pleaded guilty to threatening the creators of the cartoon South Park because of its depiction of the prophet Mohammed. Chesser is looking at up to 30 years for the threats and supporting a Somali Al Qaeda group when he is sentenced in about a month's time.” From America's Newsroom:

HERRIDGE: [T]wo terrorists convicted at Guantanamo in the last six months got a maximum of eight years in prison. In one case, a detainee who confessed to helping Osama bin Laden escape from Tora Bora was given just two years under a plea agreement with the military. Now, the Canadian detainee Omar Khadr, who was picked up in Afghanistan at 15, admitted killing an American special-operations medic, Chris Speer. Khadr was sentenced to 40 years by a military jury, but it was only symbolic. Under a plea deal, Khadr will get eight years for the murder, and a former lawyer at Guantanamo believes Khadr could be out on the street much sooner.

EDWARD McMAHON (former Guantanamo lawyer): Well, the military jury sentenced him to 40 years in prison after he admitted to the murdering of an American soldier. And the secret deal, which was done without the jury knowing it, was that he would serve eight years, most of which would be in Canada, which essentially could mean he could be paroled next year.

HERRIDGE: Contrast Khadr's cases with that of American Zachary Chesser, who was prosecuted this year in a Virginia federal court. Chesser pleaded guilty to threatening the creators of the cartoon South Park because of its depiction of the prophet Mohammed. Chesser is looking at up to 30 years for the threats and supporting a Somali Al Qaeda group when he is sentenced in about a month's time. So there's the contrast, Martha -- 30 years, potentially, for an American, and just eight for a Canadian who killed an American soldier.