First Terrorist Trial Disaster

The lesson of Ghailani's trial fiasco Pamela Geller, The Guardian

Al-Qaida declared war on the US in 1998, so let's not be moral idiots: try their combatants in Guantánamo, not civilian courts

Rubble of US embassy in Nairobi after 1998 bombing A woman is carried from the rubble of the US embassy in Nairobi in August 1998 after it was bombed by al-Qaida. At his trial in New York, 17 November 2010, Ahmed Khalfan Ghailani was found guilty on a single charge of conspiracy for his role in the attack. Photograph: Khalil Senosi/AP

On Wednesday, Ahmed Khalfan Ghailani, the first Guantánamo detainee to be tried in civilian court in New York, was acquitted of all but one charge, that of conspiracy for his role in jihadist terror bombings in Nairobi and Dar-es-Salaam, which killed 224 people. His acquittal is the first poisonous fruit of Obama's policy of treating acts of war as law enforcement issues. It also shows what is wrong with doing so.

Apparently, the evidence charging him with 224 counts of murder could not be used in court, because "coercive" techniques were used to get information from him. The jury did find him guilty of "conspiracy to destroy government buildings". So, the al-Qaida terrorist killed 224 people and he's guilty of… destruction of public property?

This is a serious setback for the US – another breathtaking failure on the part of the Obama administraton, yet again putting Americans and national security at risk.

Yet, former prosecutor and executive director of Human Rights Watch Kenneth Roth has argued that such trials, including the trial of 9/11 mastermind Khalid Sheikh Mohammed, should be in New York, since "the victims' families have a right to witness these trials." Yet, on 11 September 2001, all of America was under attack, not just the 9/11 families – it was an act of war against the United States of America.

Roth claims that "by choosing a federal court over the discredited military commissions, the US would show that it values the rule of law, trying even those accused of the worst crimes in a system that is broadly recognised as fair." In reality, by choosing a federal court, we are once again refusing to address the root cause. By pretending that these attacks were not intended to take down America, and work toward overthrowing the government and installing a Sharia-based Islamic government, we yet again surrender to Islamic supremacism and imperialism.

There have been close to 20,000 documented Islamist-inspired attacks worldwide since 9/11; all were inspired by the same Islamic jihadi ideology and given the imprimatur of a Muslim cleric. This is war. It takes incomprehensible delusion and a denial of objective reality to think that combatants in that war are comparable to civilian criminals and should be tried in the same way.

Yet, Roth contends that civilian trials are necessary because "any verdict by the military commissions will inevitably be tainted by the stigma of Guantánamo, where they are held." Barack Obama also claimed, in May 2009, that there was "no question that Guantánamo set back the moral authority that is America's strongest currency in the world."

I disagree. If America prosecutes those who kept this country safe from people like Khalid Sheikh Mohammed, as Obama seems prepared to do, that would set back our moral authority. If America turns her back on the jihad against women, Christians, Jews and non-believers, that would set back America's moral authority.

What's wrong with Guantánamo? Allegations of torture there have been politically motivated, spurious, and pale in comparison to Saddam Hussein at his most lenient. The idea that it is a bad thing that Gitmo is holding jihadists who would slaughter thousands if given the opportunity is evidence of dhimmitude and surrender to the enemy narrative, and to the disinformation that the enemy has been producing.

Moreover, detaining enemy combatants without trial is entirely consistent with the "rule of law" that applies in wartime. Indeed, the Obama Justice Department has found itself making just this argument, albeit without fanfare. In short, indefinite detention at Gitmo "destroyed our credibility" only with Bush-deranged leftists – isn't it amazing how uninterested in our credibility they've suddenly become now that their guy is accountable?

Some of Roth's attempts to justify New York civilian trials for jihadis are bizarre; others simply wrong. "Some opponents of holding the trials in New York," says Roth, "cite purported security concerns, but these fears are overblown." Really? Only if you consider human life worthless, as our enemy does. Roth also says that "the war framework is wrong for such awful crimes since it allows the suspects to glorify themselves as combatants."

Actually, a civilian trial is much more likely than a military tribunal to turn into a dog-and-pony show. In a civilian court in New York, the mass-murdering jihadis would not be on trial; Bush, Cheney, Rumsfeld and the military would be the real defendants. Such trials will become veritable jihadi circuses, in which jihadists can propagandise to the whole world in courtrooms choked with reporters.

It would also be much easier for them to game the system. Andrew McCarthy, who prosecuted the jihadists who bombed the World Trade Centre in 1993, recalled that one of them told another: "Tell them, 'I don't know. I'm not talking to you. Bring my lawyer.' Never talk to them. Not a word. 'My lawyer' – that's it! That's what's so beautiful about America.

JURY Hung on First Guantanamo Civil Trial

The hits keep on coming from a train wreck of a presidency.

Ahed Khalfan Ghailani is the first detainee who has been held at Guantanamo Bay in Cuba to be tried in civilian court under Obama's treasonous policy of treating acts of war as law enforcement issues. Ahmed Khalfan Ghailani faces charges of conspiracy and murder in the attacks in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombings killed 224 people, including a dozen Americans, and wounded thousands of others.

"This is Ghailani, " Chernoff said last week, pointing at the defendant, who at times appeared to be joking and laughing with his attorneys when the jury was not present. "This is al Qaeda, this is a terrorist. This is a killer. I ask that you return a verdict of guilty on all counts."

Today the jury was deliberating and a verdict was expected, but a note was sent to the judge by, presumably, the jury foreman. According to a FOX News broadcast, the note, written in broken English, asked the judge to replace her with an alternate. It seems this juror complained that the other members of the jury were giving her a hard time for "her opinions," and she didn't want to serve anymore.

If the jury is deadlocked, it is unlikely the prosecution could assemble the witnesses who testified in this trial. The logistics involved in bringing a number of witnesses from Kenya and Tanzania to testify would be difficult, if not impossible, to repeat.

NY Times blog here:

A juror in the trial of the first former Guantánamo detainee tried in the civilian court system asked the judge during deliberations on Monday to take her off the case, saying she was alone in her views and felt she was being “attacked for my conclusion.”

[...]

The note suggested that the jury in Federal District Court in Manhattan was split 11 to 1, although it was unclear whether the juror was alone in wanting to acquit or to convict Mr. Ghailani.

If the split is ultimately deadlocked, the judge, Lewis A. Kaplan, could order a mistrial.

The juror who sent the note, which was somewhat ungrammatical, said she felt “secure and I have come to my conclusion but it doesn’t agreed with the rest of the juror.

“My conclusion is not going to change,” the juror wrote.

Saying she felt she was being attacked by the other jurors, she asked Judge Kaplan whether she could be excused or replaced by an alternate juror.

The judge, after reading the note aloud to the lawyers and prosecutors outside the presence of the jury, said he saw nothing in the note “to support the view that there is any kind of personal disharmony” among the jurors, “as opposed to a strenuous disagreement, perhaps.”

But he added that it was hard to be certain.

With the agreement of both sides, Judge Kaplan called the jurors into the courtroom and reread part of the instructions he delivered last week when they began deliberations after four weeks of testimony in the case.

The section he read to the jurors said it was their duty “to consult with one another and to deliberate with a view to reaching an agreement.

“Each of you must decide the case for yourself,” Judge Kaplan read, “but you should do so only after consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous.”

With that, the judge sent the jurors back to continue their deliberations.

The judge broke for lunch.

Taliban to be Released from Guantanamo

Taliban prisoners would be freed from Guantánamo Bay to potentially join peace negotiations under a proposal from the Afghan council appointed to find a settlement to the insurgency.

The High Peace Council will also seek safe passage for militant commanders to travel abroad and negotiate, a senior member of the body told The Daily Telegraph.

Mullah Arsala Rahmani said talks needed representatives of the Taliban’s Pakistan-based Quetta Shura, or ruling council, many of whom were unable to travel because of sanctions or the threat of capture.

Saudi Arabia, Turkey and Turkmenistan were all candidates to host fugitive militants he said, while Iran, Afghanistan and Pakistan had been ruled out.

How Yemeni Bomb Plot Uncovered

Let's say that the West was mega lucky to have been tipped off about last week's package bombs.

The source of a tip that alerted security agencies around the world to the package-bomb plot late last week was Jabir al-Fayfi, a Saudi national and former Guantánamo Bay inmate, a Yemeni security official said Monday.

The tip-off has been heralded as a major intelligence coup. But the detainee's shifting loyalties to al Qaeda over the years also underscore the challenges in battling the group.

Mr. al-Fayfi was released from Guantanamo in late 2006 into Saudi custody and entered a Saudi re-education program designed to sway Islamic militants away from violence. He appears to have joined up with al Qaeda in Yemen in 2008.


His defection after the re-education program in Saudi Arabia, as well as that of other key Saudis now leading the ranks of the Yemeni branch of al Qaeda, raised questions about the effectiveness of the Saudi method in dealing with their homegrown jihadis. But now, Mr. al-Fayfi's alleged role in uncovering the package-bomb plot could boost international confidence in the Saudi tactics. Instead of detention facilities like Guantánamo, Saudis employ religious scholars to persuade militants to forsake violence and offer generous social and job benefits to entice the men to settle into routine lives.


It isn't clear if Mr. al-Fayfi was a Saudi mole, working inside al Qaeda in the Arabian Peninsula, as the Yemeni branch of the group is known, or whether he genuinely rejoined al Qaeda and then had second thoughts.

Saudi officials didn't return calls seeking comment. The Yemeni official didn't comment. Whatever the case, U.S. and Arab officials said that without the tip-off, it would have been very difficult to have intercepted the package bombs last week. U.S. and European officials were quick to credit Saudi Arabia with providing the intelligence tip-off.

Anyone else suspect that 'our friends the Saudis' are trying to ensure that the West does not insist on shutting down their 'rehabilitation program'?

Hmmm.

posted by Carl in Jerusalem

Guantanamo Suicides and the Whistle Blower

The Guantanamo "suicides" incident dates back to 2006 under the Bush administration. There is evidence of an immense cover-up that extends through the Obama administration. Harper's Magazine has prepared a 15-page article slated for release on 15/2/2010. The editors consider the report important enough for early release online.

The Guantánamo “Suicides”: A Camp Delta sergeant blows the whistle

By Scott Horton Harper's Magazine



http://harpers.org/archive/2010/01/hbc-90006368

Talk About Becoming the Enemy

We also know that, even after the supposed banning of some measures that had been previously approved by the Secretary of Defense, these techniques continued at the detention center at Guantánamo Bay Naval Base, and probably other prisons, even while the Inspector General was putting a seal of approval on the whole affair.

As Josh White wrote in the Washington Post last Friday:

At least 17 detainees held at Guantanamo Bay were subjected to a program that moved them repeatedly from cell to cell to cause sleep deprivation and disorientation as punishment and to soften detainees for subsequent interrogation, according to U.S. military documents.

Defense Department investigations of abuse had previously revealed that the program was used in a limited manner and only on high-value detainees, but the documents indicate that the program was far more widespread and that the technique was still used months after it was banned at the facility in March 2004. Detainees were moved dozens of times in just days and sometimes more than a hundred times over a two-week period.

Military police logs for cell blocks at Guantanamo Bay, Cuba, show that guards used the program -- dubbed the "frequent flyer" program in official documents -- on numerous detainees and noted the program in their 2003 and 2004 records. The logs, reviewed by The Washington Post, also indicate that the frequent cell movements took place on the same days a Navy admiral was visiting Guantanamo to assess possible detainee abuses.

Guantanamo is in Total Disarray

By Andy Worthington, Andy Worthington's Blog.

Guantánamo is in total disarray.

Anyone who has kept half an eye on the proceedings at the Military Commissions in Guantánamo -- the unique system of trials for "terror suspects" that was conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his close advisers -- will be aware that their progress has been faltering at best. After six and a half years, in which they have been ruled illegal by the Supreme Court, derailed by their own military judges, relentlessly savaged by their own military defense lawyers, and condemned as politically motivated by their own former chief prosecutor, they have only secured one contentious result: a plea bargain negotiated by the Australian David Hicks, who admitted to providing "material support for terrorism," and dropped his well-chronicled claims of torture and abuse by US forces, in order to secure his return to Australia to serve out the remainder of a meager nine-month sentence last March.

In the last few weeks, however, Cheney's dream has been souring at an even more alarming rate than usual. Following boycotts of pre-trial hearings in March and April by three prisoners -- Mohamed Jawad, Ahmed al-Darbi and Ibrahim al-Qosi -- the latest appearance by Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, spread the words "boycott" and "Guantánamo" around the world.

Hamdan is no ordinary Guantánamo prisoner. It was his case, Hamdan v. Rumsfeld, that shut down the Military Commissions' first incarnation in June 2006, when the Supreme Court ruled that they were illegal, a decision that forced the administration to press new legislation -- the Military Commissions Act -- through a sleeping Congress later that year.

But Hamdan's fame meant little to him on April 29, when he too decided to boycott his trial, telling Navy Capt. Keith Allred, the judge in his last pre-trial hearing before his trial is scheduled to begin, "The law is clear. The Constitution is clear. International law is clear. Why don't we follow the law? Where is the justice?"

For his part, Capt. Allred did not give up without attempting to persuade Hamdan that he should believe in the legal process before which he found himself. "You should have great faith in the law," he said. "You won. Your name is all over the law books." This was true, but it was little consolation for Hamdan, who was charged again as soon as the Commissions were revived in Congress. Nor could Capt. Allred's addendum -- "You even won the very first time you came before me" -- sway him, even though that too was true.

Last June, when Hamdan appeared before Capt. Allred for the first time, in the first pre-trial hearing for his new Military Commission, Allred dismissed the case, pointing out that the Military Commissions Act, which had revived the Commissions, applied only to "unlawful enemy combatants," whereas Hamdan, and every other prisoner in Guantánamo for that matter, had only been determined to be "enemy combatants" in the tribunals -- the Combatant Status Review Tribunals -- that had made them eligible for trial by Military Commission.

It was small wonder that Hamdan was despondent, however. Two months later, an appeals court reversed Allred's decision, and Hamdan -- twice a victor -- was charged once more, and removed from a privileged position in Guantánamo's Camp IV -- reserved for a few dozen compliant prisoners who live communally -- to Camp VI, where, like the majority of the prisoners, he has spent most of his time in conditions that amount to solitary confinement, and where, as his lawyers pointed out in February, his mental health has deteriorated significantly.

As he prepared to boycott proceedings, Hamdan had a few last questions for Capt. Allred. He asked the judge why the government had changed the law -- "Is it just for my case?" -- and responded to Allred's insistence that he would do everything he could to give him a fair trial by asking, "By what law will you try me?" When Allred replied that he would be tried under the terms of the Military Commissions Act, Hamdan gave up. "But the government changed the law to its advantage," he said. "I am not being tried by the American law."

Col. Morris Davis condemns the Commissions (again)

Hamdan's eloquent and restrained explanation for his boycott was the most poignant event in his hearing, but it was not the most explosive. That accolade was reserved for Col. Morris Davis, the former chief prosecutor for the Commissions, who resigned noisily last October, citing political interference in the process. Once the Commissions' stoutest supporter -- in 2006 he told reporters, "Remember if you dragged Dracula out into the sunlight he melted? Well, that's kind of the way it is trying to drag a detainee into the courtroom" -- Col. Davis explained his Damascene conversion in an op-ed for the Los Angeles Times in December. [more]