Saturday, November 20, 2010

The Ghailani Verdict-Why We Need Military Tribunals

Gary Fouse

The Department of Justice can spin this case any way they want. The fact is that the acquittal in New York of Ahmed Ghailani while being convicted of one count of conspiracy is a defeat for justice and a signal as to why these cases should be held by military tribunals instead of civilian courts.

It has been reported that the presiding judge had refused to allow the testimony of a key witness because the government had come up with that witness as a result of "enhanced interrogation". Fruit of the poisoned tree I assume.

It seems a stretch to me that the jury could convict him of conspiracy in connection with the African embassy bombings that killed 224 people, but not the murders themselves. Under conspiracy law, a co-conspirator who did not actually carry out the substantive act (in this case bombing the embassies) is still legally responsible if it was reasonable for a person to conclude that this plan could result in the deaths of people (in this case). I don't know the fine details in this case, but the key point is whether he was knowingly contributing to a plan to commit a terroristic act. For example, if you help a group of bank robbers case a bank, and in the act of robbing the bank, an innocent person is killed, you can still be held liable for the death even if you were not present. Why? Because if you knew you were assisting a bank robbery-even though you were not present-you would reasonably know there was a danger of someone being injured or killed.

The bottom line is that these cases belong before military tribunals. These are unlawful enemy combatants who fall outside the rules of war. There is no reason we should clog our court system with these terrorists-with whom we are at war. The example is the German saboteur case during World War II when German operatives landed on US shores to bomb key facilities. It was outside the rules of war. They were captured, tried by a military tribunal, and most were hanged.

By the way, when I was an Army MP, I had occasion to testify in a couple of court martials. I am confident they can do the job.

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