Calvin Freiburger

Predictable: Necessary Interrogation Tactics Doomed Gitmo Prisoner’s Civilian Trial from the Start

Posted on November 23 2010 9:00 am
Hailing from Fond du Lac, Wisconsin, Calvin Freiburger is a political science major at Hillsdale College. He also writes for the Hillsdale Forum and his personal website, Calvin Freiburger Online.

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Harassing harmless American citizens in the name of national security is one thing; harshly treating terrorists is another story. For obvious reasons, we tend to be far less sympathetic to the interests of the people trying to murder us, but even with moral qualms out of the way, handling captured terrorists presents complications of a more practical nature, as well.

Ahmed Ghailani, the first Guantanamo Bay prisoner tried in a civilian court, was charged with 285 counts but convicted of only one. Why? Because the others rested upon evidence gathered through enhanced interrogation, and was therefore ruled inadmissible.

At the Daily Beast, Karen Greenberg not only defends the exclusion of the tainted evidence, but argues that it probably wouldn’t have changed the jury’s mind anyway:

It is a fact that Judge Kaplan made history when he issued his opinion excluding Abebe from the trial. For the first and perhaps only time in the war on terror, torture had consequences.

Only if saving American lives doesn’t count as a “consequence.” Because if it does, this is neither the first nor the only time.

Anyway, the testimony of witness Hussein Abebe, whose admission that he sold dynamite to Ghailani led Ghailani to confess, was thrown out because the authorities only found out about Abebe because of enhanced interrogation techniques, meaning that, as Andy McCarthy says, “Similarly, the jury was not allowed to learn that Ghailani had confessed, and that after the bombing he had become a celebrity in al-Qaeda circles”:

That is, swaddled in the protections of civilian due process, Ghailani was allowed to pose before the jury as a victim of circumstances who had no idea that the terror network was preparing simultaneous massacres at American embassies.

Sounds like a big deal to me, but to Greenberg, it’s no biggie, because the jury probably wouldn’t have found Abebe credible even if he had testified:

The judge, although basing his decision on the constitutionality of excluding evidence obtained through torture, was clearly concerned about Abebe’s credibility overall and about the role which fear of reprisal may have played in Abebe’s willingness to appear in court. At one point in the pre-trial hearing, Judge Kaplan asked the witness whether he remembered testifying that in Tanzania the police sometimes took people without telling their families where they were being held. The witness said that he remembered telling the court this. “He was no volunteer,” the judge wrote in his opinion, “Quite the contrary. He was induced to testify only out of fear of the consequences of not doing so, including possible prosecution and, conceivably, worse.” The testimony itself, according to Judge Kaplan, in his largely redacted opinion on suppressing the witness, was “quite incredible.”

No, Ms. Greenberg, the jury didn’t “decid[e] this case based on the facts.” They didn’t hear about a confession made by Ghailani, not Abebe. Perhaps the decision to throw out Abebe’s testimony squared with the rules and traditions of our civilian justice system, but in my mind, that only raises questions about even our civilian rules of admissibility.

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