The Real Miscarriage of Justice
Below, Ned rightly derides Rep. Peter King for calling the verdict in the Ghailani trial a “total miscarriage of justice.” Ned correctly notes that the miscarriage of justice here was not the verdict itself, but rather the Bush Administration’s use of torture to obtain the evidence that otherwise would have convicted Ghailani on the counts of which he was acquitted. That use of torture tainted the evidence in such a way that it would not have been admissible even before a military tribunal.
Despite this glaringly obvious fact, two closely-related memes have developed: 1. that the verdict discredits the use of civilian courts for purposes of trying terrorism suspects because of the distinct possibility that the civilian courts will allow terrorists to walk; and 2. that the verdict discredits the Obama Administration’s strategy for using civilian courts to try terrorism suspects.
The first of these memes is, to put it bluntly, preposterous. The second, however, is all too accurate.
The fact is that even independent of civil liberties concerns, there is a very good reason why evidence obtained through the use of torture – or, if you’d prefer, enhanced interrogation techniques – is rightly inadmissible in both civilian court and before military tribunals: evidence obtained under such circumstances, including confessions, is not reliable. If, as seems to be the case for many of the verdict’s critics, the essential evidence for one’s claim that Ghailani was guilty is that he confessed to CIA interrogators while undergoing torture – or, if you’d prefer, enhanced interrogation techniques – then the fact is that you don’t truly know that he was guilty. Indeed, we already know that in cases where a confession is the primary basis for a finding of guilt, those confessions are extraordinarily unreliable and often false even when there is no use of torture – or, if you’d prefer, enhanced interrogation techniques.
In other words, the use of torture on Ghailani and, it would likely seem, the would-be primary witness against him, did not simply make it more difficult to obtain a conviction, it actively prevents us from knowing whether his involvement in the attacks was more than that for which he was convicted. Because of that use of torture, the best we can do is suspect that Ghailani was guilty of more than that for which he was convicted. And I assume few would argue that mere suspicions are a sufficient basis to lock someone up for the rest of their life, regardless of the charges.
So the meme that the acquittals discredit the use of civilian courts for terrorism trials is indeed absurd, and the defenses of the verdict exactly correct.
But the second meme – that the verdict discredits the Obama Administration’s strategy – is right nonetheless. That strategy, as Glenn Greenwald and many others have noted for quite some time, is to hold terrorism suspects indefinitely under the President’s “post-acquittal detention power” in any case where the suspect is acquitted. With all due respect to Ned, this strategy is also not a new one which the Administration has adopted in response to the new Republican majority in the House of Representatives, but rather has been the explicit contingency plan of the Administration ever since it made the announcement that it would attempt to prosecute these cases in civilian courts in mid-2009.
At the time, it was pointed out that this strategy amounted to reducing the civilian courts to merely being venues for “show trials,” something that was pointed out by not only civil libertarians like Greenwald, but also outspoken supporters of virtually the entire War on Terror like Jonah Goldberg and Ed Morrissey, and moderates like James Joyner.
With these acquittals, that contingency plan comes directly into play, even if the conviction on one conspiracy count assures that Ghailani will be locked up for far longer than the Obama Administration will conceivably be around. With the acquittals, the specter is raised, however unlikely, that Ghailani will receive something less than a life sentence. This means that the Administration may no longer be able to speak only in hypotheticals about its “post-acquittal detention power,” but will instead have to state clearly whether it will take steps to assure Ghailani remains incarcerated for the rest of his life regardless of Ghailani’s sentence.
If the answer is, as one expects, “yes,” then there was and is no point to having trials at all. Worse, the Obama Administration will have asserted unto itself an expansion of Executive Power of which Dick Cheney could have only dreamed: the authority to incarcerate indefinitely an acquitted criminal on the very charges of which he was acquitted. If the President is ultimately successful in claiming such powers, then there cease to be any limits, real or imagined, on Executive Power, and the criminal justice system becomes, in effect, an anachronism in which the whims of the Executive are the sole meaningful arbiters of guilt or innocence.
While the criminal justice system is the sole proper venue for the prosecution of criminals, it is only such a venue if its decisions are truly binding on the Executive. If they are not so binding, then the judicial system is transformed from a check on the untrammelled abuse of power into an explicit accomplice of that abuse of power, with the authority only to legitimize abuses and no authority to prevent them or reverse them.
To that end, Joyner’s words today are exactly on point:
I don’t like the idea of indefinitely detaining people without some prospect of judicial review to determine whether or not they there is a legitimate reason to detain them, but I like even less the idea of the justice system being used to “send a signal” when it’s clear that the outcome in Court will have absolutely no impact on whether or not someone continues to be held in detention. That’s not justice, it’s a Stalinist show trial.