N.Y. Prosecution of Terrorism Suspect Divisive

Daily News Article   —   Posted on June 10, 2009

(by Ben Conery, WashingtonTimes.com) – As the Obama administration began its test case of prosecuting a Guantanamo detainee in federal court, advocates and lawmakers remained sharply divided about whether the move helps or jeopardizes national security.

Ahmed Khalfan Ghailani pleaded not guilty Tuesday at a federal courthouse in New York on charges that he participated in the 1998 bombings of U.S. embassies in Kenya and Tanzania, which killed 224 people, including 12 Americans. Mr. Ghailani has been under indictment since 2001.

He was captured in 2004 and has been at the detention center at U.S. Naval Base Guantanamo Bay, Cuba, since 2006. He faces the death penalty if convicted.

Mr. Ghailani is the first Guantanamo detainee to have his case transferred to a civilian court, part of the Obama administration’s pledge to close the facility by next year.

The president has said that closing the detention center and moving its roughly 240 detainees will improve relationships with U.S. allies and deprive al Qaeda of a powerful recruiting tool, but a recent poll shows a majority of Americans disagree with him.

A USA Today/Gallup poll from last week shows that Americans opposed closing the Guantanamo prison by a 2-1 margin and opposed prisons in their home states accepting terrorism suspects by more than a 3-1 ratio. The poll surveyed 1,015 people.

“By moving a terrorist into the federal prison and court system, the president is blatantly ignoring the demands of Congress and the American people, who want a policy and procedure in place for what to do with the detainees before bringing them into the United States,” said Kirk S. Lippold, former commander of the USS Cole and a senior military fellow at Military Families United. “It sets a dangerous precedent by potentially forcing the deliberate release of classified information and leaves the prosecuting attorney vulnerable to losing this case.”

House Republicans have shared those concerns, even going so far as to propose a law that would require the federal government to receive a state’s permission before transferring a detainee there.

“This is the first step in the Democrats’ plan to import terrorists into America,” House Minority Leader John A. Boehner of Ohio said in a statement. “Without a plan to close the prison at Guantanamo Bay, the administration has made the decision to begin transferring these terrorists into the United States, in spite of the overwhelming opposition of the American people and serious questions from members of Congress of both parties. … Just what is the administration’s plan for closing this prison?”

The Justice Department sought to allay those fears Tuesday by noting that four of Mr. Ghailani’s co-defendants have already been tried in federal court and have been convicted and sentenced to life in prison. The department also reports holding 216 terrorists in federal prisons.

“The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system,” Attorney General Eric H. Holder Jr. said, “and we will bring that experience to bear in seeking justice in this case.”

Civil-liberties groups praised the move, saying Mr. Obama is trying to prove that U.S. courts can handle these kinds of cases. But they said they’re still worried by Mr. Obama’s plan to let some detainees be held indefinitely without trial or release.

“What remains to be seen, and what will be the true test of adherence to constitutional principles by the Obama administration, is how the remaining terrorism suspects will be handled,” said Virginia Sloan, president of the Constitution Project. “If even one is entered into a policy of ‘prolonged detention,’ as suggested by President Obama last month, our nation’s commitment to the rule of law will not be realized.”

Human Rights First, an organization that recently completed a lengthy report that concluded terrorism cases can be prosecuted effectively in federal courts, similarly praised the move, saying that “if repeated, this demonstration of confidence in our federal courts will make our country more secure.”

“I think that what this demonstrates is that the federal courts are the right place to bring terrorist cases,” said Devon Chaffee, advocacy counsel for Human Rights First, who also noted the convictions of Mr. Ghailani’s co-defendants. “The courts are equally capable of handling Mr. Ghailani’s case.”

• Stephen Dinan contributed to this report.

Copyright 2009 News World Communications, Inc.  Reprinted with permission of the Washington Times.  For educational purposes only.  This reprint does not constitute or imply any endorsement or sponsorship of any product, service, company or organization.  Visit the website at washingtontimes.com.

Questions

1. a) What act of terror is Ahmed Khalfan Ghailani accused of committing?
b) What punishment does he face if convicted?

2. a) How long has Ahmed Ghailani been held at GITMO?
b) Why has President Obama ordered Ghailani to be tried in a civilian court?

3. a) What were the results of a USA Today/Gallup poll on American views toward closing GITMO, and having terrorism suspects moved to state prisons?
b) What do you think about each of these questions? Explain your answer.

4. How does the Obama Justice Department defend the plan to try Ghailani and other terrorists in civilian court?

5. Some questions to think about:

  • Do people of all nations, including terrorists, have the same rights as Americans citizens under the U.S. Constitution?
  • Do those outside of the U.S. who commit a terrorist act have the same rights as U.S. citizens under the U.S. Constitution?
  • If a U.S. citizen commits acts of terrorism against U.S. citizens, does he have the same right to be tried in a civilian court that an ordinary criminal does?

6. Civil-liberties groups (the ACLU and others) worry that some accused terrorists will be held indefinitely without trial or release.  Read the argument under “Background” below defending the practice of holding terrorists indefinitely.  This is a long entry, and challenging to read.  However, it is necessary to understand the arguments before forming an opinion.  The writer used several court decisions to defend his position.  Do you agree or disagree with the arguments below?  Why or why not?


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Background

In defense of the Bush administration’s practice of holding accused terrorists at Guantanamo Bay, Cuba Detention Facility (GITMO).  (From the blog consul-at-arms.blogspot.com/2005/11/re-response-to-usual.html)

1) The term “enemy combatants” was used by FDR…, even in connection with US citizens, and has concrete meaning under international law as it was understood in WWII and now. To argue … that Bush “invented” the concept and his power to hold such people out of whole cloth is to ignore the entire constitutional law history of the debate. To quote from the Supreme Court’s opinion in Ex Parte Quirin … (1942):

“Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.”

In short, FDR labeled the Nazi saboteurs of Ex Parte Quirin enemy unlawful combatants, had them tried before a military tribunal and executed, all in accordance with recognized international law. (Note: over time the more archaic sounding “enemy belligerent” merged with the concept of “unlawful combatant” to become today’s designation of “enemy combatant”). This concept was upheld again by the US Supreme Court in Hamdi v. Rumsfeld [2004] when it held that:

“The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.” ………….

“There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,”; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.”

This fact has been litigated and re-litigated over and over again by legal scholars who [oppose the government’s treatment of accused terrorists at GITMO]. To date, the courts have unanimously found that far from “inventing” a category and “making-up” non-existent powers, [President Bush] has been properly discharging his duties. As the Fourth Circuit noted in Padilla v. Hanft on September 9, [2005]:

“In short, [US Supreme Court case] Hamdi affirmed what the President has been saying all along: as President he has the duty and the authority to detain those who would wage war against the United States and that this authority does not implicate the procedures or the mechanisms of the criminal law in the least, even if the detainee is a U.S. citizen.

2) Since FDR executed the enemy combatants instead of merely holding them as prisoners as Bush is doing, it is self-evident that FDR treated them “more harshly” than the current administration.

3) [Opponents of GITMO also cite] the Geneva Convention, [saying] that the U.S. is somehow in violation of it. No such violation has ever been found by a court during the numerous challenges to its conduct the Bush Administration has been subjected to. The Geneva Convention’s protections extend only to organized soldiers, who fight in uniform and report to a central authority. (Soldiers, in other words). The only thing the Bush Administration has done with regard to the Geneva Convention is to state the obvious: it’s protections apply to regular soldiers of the Iraqi Army, but do not apply to the Taliban (except in certain limited cases) or al-Qaeda.

4) [Opponents also argue] that while FDR tried his enemy combatants, the people at Gitmo have never been tried, do not have due process rights, etc. The root of this error is failure to distinguish the two types of captivity an enemy combatant may be subjected to. First, as the U.S. Supreme Court upheld in Hamdi (see quotes above) an unlawful combatant can be held under the President’s inherent war fighting powers, as authorized by Congress, until hostilities end. This type of detention is designed merely to prevent the enemy fighter from re-joining the fight. The innovation in Hamdi was that the Court directed the Executive Branch to hold a hearing to determine that the person so held was properly detained. This hearing is strictly perfunctory, and should not be confused (as it always is) with a military tribunal adjudicating a crime.

The second type of detention (and punishment) is for an alleged war crime. This would be tried before a different type of military tribunal, which would then hand down a sentence, confirmed by the President acting as commander-in-chief.

I realize that this is confusing. … Perhaps a good example would illustrate.

Example A: Ahmed is a Taliban supporter who has taken up arms against U.S. forces in Afghanistan. He is given a rifle, some basic training and then forms up to fight with a small group of Taliban fighters. Over time, he becomes a leader, leading his own small band in fights against US forces. One night, Ahmed’s unit is surrounded by US Army forces and most of Ahmed’s men are killed. Ahmed and eight other Taliban fighters are captured. US Army intelligence quickly learns that Ahmed was the leader of the band and that he represents both an above-average threat and that he may have valuable intelligence. Ahmed is sent to Gitmo.

  • Ahmed is an enemy, unlawful combatant. The terms of the Geneva Convention do not apply.
  • Under the Hamdi decision, the President has the authority to hold Ahmed at Gitmo until hostilities between the Taliban and US forces cease in Afghanistan.
  • Under the Hamdi decision, a tribunal of some kind (the Court did not specify its exact make-up, though it strongly suggested that a military tribunal would suffice) must hear evidence of Ahmed’s capture sufficient to lead to a conclusion that he was an enemy combatant and not, say, a farmer who was in the wrong place at the wrong time. This is an Executive Branch hearing, not a trial.

Example B: During questioning at Gitmo, Ahmed boasts that it was he who beheaded three schoolgirls in a remote Afghan village for the crime of attending school and not being properly attired. The US brings war crime charges against Ahmed specifically for these killings. He is tried for the war crime before a military tribunal, sentenced and executed.

As you can see, the U.S. can hold Ahmed just as effectively under Example A as it can under Example B, except that were hostilities to cease Ahmed would have to be released. Since the U.S. is not in the mood to execute these guys, we by and large have been sticking with Example A, though some of the first trials under Example B are coming up.

5) This is why the detainees at Gitmo have not been charged with a crime or received the due process rights such suspects are given: they are not being criminally held. They are being held as prisoners in connection with the President’s authority to fight this war, an authority that has been scrutinized again and again by the courts and found to have been properly executed. On this point especially, [opponents are] simply misinformed and wrong.

Resources

The Geneva Conventions consist of four treaties formulated in Geneva, Switzerland, that set the standards for international law for humanitarian concerns. These four treaties are the basis for humanitarian law across the world.  They chiefly concern the treatment of the wounded, civilians, shipwrecked and prisoners of war. (from the Geneva Convention entry at wikipedia)

Under the “Military Commissions Act of 2006” (posted at wikipedia.org) the following is stated:

Any alien unlawful enemy combatant is subject to trial by military commission…

The term ‘unlawful enemy combatant’ means –

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al-Qaida, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

The term ‘lawful enemy combatant’ means a person who is –

(A) a member of the regular forces of a State party engaged in hostilities against the United States;

(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”

The Act also defines an alien as “a person who is not a citizen of the United States”, and a co-belligerent to mean “any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.”