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.

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:

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: