Ghailani Gets Life without Parole
In November, a New York jury found Al Qaeda bomber Ahmed Ghailani guilty on only one of 285 charges for his role in the Kenya and Tanzania embassy bombings. I called it “a good outcome” for a number of reasons, largely agreeing with Ben Wittes.
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
As it turns out, getting convicted on one of 285 serious charges still gets you a serious sentence… life without parole. Regardless of what Andy McCarthy and Marc Thiessen think, chalk this up as a win.
The Ghailani Verdict
You’ve probably heard that a jury found Al Qaeda bomber Ahmed Ghailani guilty on only one out of 286 charges associated with the 1998 embassy bombings in Kenya and Tanzania.
A predictable debate followed. Glenn Greenwald cited the outcome as proof that the system works, while Liz Cheney, Debra Burlingame and Bill Kristol described the trial as a reckless experiment. Thomas Joscelyn called the trial a miscarriage of justice.
The most insightful commentary I’ve seen is over at Lawfare. Benjamin Wittes and Robert Chesney summed things up pretty well: “Trial in federal court didn’t work out the way the Obama administration wanted, but it wasn’t a disaster–and we can’t honestly say it worked out worse than the military commission alternative would likely have done.”
I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.
That’s a good outcome.
Try the 9/11 Conspirators in Both Federal Courts and Military Commissions?
That’s the proposal Benjamin Wittes makes in today’s Washington Post. Wittes says that by splitting the legal baby, by “charging the 9/11 case in both military commissions and federal court,” the Obama administration can satisfy political considerations on both sides of the aisle.
This is a path fraught with legal issues. The constitutional bar against double jeopardy would prevent a trial in one forum and re-trial in the other for the same actions. Wittes spells out his proposal in greater detail in this post at the Lawfare blog, and he acknowledges this risk. The same sovereign cannot try someone twice for the same crime and Wittes acknowledges that the “John Allen Muhammed Model,” named after one of the Beltway snipers, used the separate sovereigns doctrine in ways that do not apply to Guantanamo. The Beltway snipers were liable for separate crimes in Maryland and Virginia in a way that does not translate directly to the 9/11 conspirators.
Wittes recognizes these legal issues and proposes that federal prosecutors and military commissions prosecutors clearly separate the crimes they respectively charge.
I’d go further. The clearest way to make this work is not to “charg[e] the 9/11 case in both military commissions and federal court.” This proposal only works if you charge pre-9/11 conduct in an Article III court and the 9/11 attacks in a military commission.
The Double Jeopardy Clause of the Fifth Amendment would prevent “charging the 9/11 case in both military commissions and federal court.” Federal prosecutors charged Khalid Sheikh Mohammed well before 9/11 for his participation in the Bojinka Plot, a plan to blow up airliners over the Pacific Ocean. To the extent that he and other 9/11 co-conspirators can be charged with crimes related to Bojinka or other pre-9/11 attacks, this would pass constitutional muster. Otherwise, this is a not an advisable course of action.
The Lieberman-Brown Bill and Your Right to Stay out of Gitmo
The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.
As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.
The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.
With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century. I discuss some of the low points of this legislation in this podcast:
This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.
What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.
This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.
In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.
Playing Chicken Again
As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.
This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that — it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.
The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.
The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard — commissions for Muslims in America, civilian trials for everyone else — is counterproductive when it comes to defeating terrorist recruiting.
I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:
Obama’s Military Commissions
President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses. Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”
Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:
What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins. It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking. Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.
Greenwald is right. The primary issue is not due process. The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?
For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.
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