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.

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6 thoughts on “The Real Miscarriage of Justice

  1. I agree with your point 2, but I don’t think you’ve completely answered the concern in point 1 assuming that point 1 doesn’t only deal with what was articulated at Powerline.

    Taking a broader view of the issue, there is no real debate that certain individuals, who are outside of the US, are interested in attacking civilians inside (and outside) the US. Many of these individuals are currently in Afghanistan and Pakistan and are in areas of those countries where civilian law enforcement (whether US or Af/Pak) cannot reach them. Accordingly, we are confronted with a scenario where people who endeavor to attack US civilians are being captured by members of the US military (or members the Af/Pak military) who are not, as a practical matter, in a position to insure that civilian standards of detention are followed with respect to captured individuals. The notion, which some seem to accept as a given, that such persons are appropriate for Article III courts is not clear. There are substantial dangers to using Art3 courts in this fashion.

    Either we agree that we will allow for Art3 courts to accept substantial deviations from typically acceptable state conduct and still allow the state to prosecute those individuals- an uncomfortable precedent at best- or we simply accept that we try these individuals in a venue that increases the likelihood that substantial evidence will be excluded. Even when torture is not implicated in any way. It is not clear that such is a sound effort and it is completely unclear why should we simply accept that it is.

    I’m not about to articulate a complete policy in these matters (and I’ll admit I’d have trouble doing so) but being very uncomfortable with the “have the military scoop them up and bring them in for a civilian trial” is a completely reasonable and defensible position, irrespective of how poorly it may be articulated in certain quarters. And the people who are advocating for that policy have, IMO, done a very poor job of dealing with its practical problems.

    Obviously, because torture was implicated here, we can point to that and ignore the larger inquiry. Additionally, your precise point that this specific trial does not foreclose using Art3 courts in these matters is sound. But on the larger point, I don’t think the answers have been provided by those who advocate for this course and this seems like a perfectly reasonable time for those who oppose this course to ask for those answers.

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    • I agree that the issue here more generally is fairly complicated, and there are a lot of vagaries that exist thanks to Congress’ failure to act in the wake of SCOTUS precedent that (correctly IMHO) overruled much of the original regime. I’ve criticized that failure to act in the past, and think it’s a particularly inexcusable abdication of responsibility on Congress’ part.

      In terms of an actual legal regime, one of the primary problems we seem to have is this gray area between the Geneva conventions and US law, which is exacerbated even more by the fact that we aren’t in a conflict with a cognizable legal entity. In the absence of Constitutionally valid procedures set up by Congress, we’re basically forced to fall back on what we’ve got, which is essentially the Article III courts.

      But whatever system we put in place, the cornerstone has to be that we are only detaining people captured abroad for any significant length of time after we have been able to demonstrate to a legal certainty that they are in fact a threat to the United States or guilty of some crime properly within the jursidiction of the United States.

      I have some thoughts on what kinds of systems I think might work better, but don’t have time to write them out right now.

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      • “But whatever system we put in place, the cornerstone has to be that we are only detaining people captured abroad for any significant length of time after we have been able to demonstrate to a legal certainty that they are in fact a threat to the United States or guilty of some crime properly within the jursidiction of the United States.”

        Here’s something I don’t get about the whole subject. Some of the controversy over detainees has to do with supposed misclassification of enemy combatants. But not most of it, and not here (or with KSM for that matter).

        So why do we need to try them at all? They may be POWs or some lesser status but they don’t have to be guilty of any crime, either a civilian crime or war crime. They are combatants for the other team so under any formulation of the laws of war they can be held until the war is over. If this is right (and I think it is) how do trials in the civilian justice system help us?

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  2. While there is some support for your argument Koz, the primary problem with it is that it assumes that our President can hold people indefinitely and that such people have substantially no recourse to challenge that detention. For obvious reasons- even if legally permissible- that solution is problematic. The need to try them ultimately is for our own benefit- it has substantially nothing to do with KSM or his concerns.

    Where I disagree with Mark is that we did have a pretty reasonable framework for working these things out in the 2006 MCA. It was hardly perfect of course, but it did offer some predictability and provide for some level of a check on the President. And, most importantly, it followed, in many respects, the framework laid out in Ex Parte Quirin. Now, I take no issue with those who still had concerns with the MCA, but certain of the arguments against it (particularly SCOTUS’s efforts in Boumidienne) are woeful.

    The real problem here that I see is that we are faced with individuals who are clearly not “typically” civilian in nature, nor are they clearly military for Geneva purposes. Accordingly, they are a third class and must be treated in such a way so as to provide for reasonable national defense, but not in a way that jeopardizes how we deal with the other two classes. To my mind Quirin (and the MCA) strike the best balance on that score. Now, it may be that people reject that balance based on policy grounds. But the lack of specific engagement on some very basic questions on this issue lead me to conclude that a substantial number of people rejected the the Quirin/MCA approach because of “Bush” and little besides (that is not an indictment of this post’s author.) Not only is that disappointing, it makes it substantially impossible to resolve the issue. Particularly if (in what would be very unusual) Bush stumbled upon the best of a bunch of bad options in this matter.

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    • “While there is some support for your argument Koz, the primary problem with it is that it assumes that our President can hold people indefinitely and that such people have substantially no recourse to challenge that detention. For obvious reasons- even if legally permissible- that solution is problematic. The need to try them ultimately is for our own benefit- it has substantially nothing to do with KSM or his concerns.”

      Why is that, what do we get out of (successfully) trying KSM? Btw, speaking for myself at least I don’t have any problems with detainees challenging their detention. The point being that they are being detained as being enemy combatants so the substance of the challenge is that they’re not. For most of them, that’s not really an issue anyway.

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      • “what do we get out of (successfully) trying KSM?”

        Well, the intent was to set a legal precedent that detainees could be held as criminals without needing to use the “enemy combatants” dodge (or invent a “third class” as Kilgore suggests.)

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