CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, November 19, 2010

"Verdict dims outlook for civilian trials of terrorism detainees"

From the Washington Post:

What was a very bad day for Ahmed Ghailani, now a convicted felon likely to spend many years in a supermax prison, was also, because of the super-charged politics surrounding Guantanamo Bay, a pretty bad day for the Obama administration.

. . .

[T]he political reality is that the prospect of a tough sentence for conspiracy to destroy U.S. property by fire or explosives was largely swallowed up by a stunning verdict in which Ghailani was acquitted of 284 counts, including all 224 murder counts.

. . .

Jack Goldsmith, a former Justice Department official in the George W. Bush administration and now a Harvard Law School professor, wrote on the Lawfare blog Thursday that the military detention option is a "tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever."

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There doesn't appear to be any reason why a civilian fact finder would have any difficulty in deciphering the evidence and applying the law in such cases. If Ghailani was acquitted, it must be because the evidence didn't pass muster. Civilian prosecutors certainly are no less diligent or zealous in pursuing those accused of crimes, sometimes so zealous as to violate the Constitution, not to mention the rules of professional conduct, as a recent study concluded.

Thus, it appears that Goldsmith is either arguing that a lesser burden of proof should be applied to detainees, undermining the credibility of America's commitment to justice, or acknowledging that he longs for kangaroo court military tribunals in which the fact finder is free to ignore the evidence and simply find guilt upon accusation alone. The "easier-than-trial option" seems to be code for execute first and ask no questions later.

When men or women are tried or imprisoned indefinitely on the basis of flawed and unreliable evidence, when guilt or innocence is irrelevant to the verdict, and where mere suspicion supports a finding of guilt, then we are surely a society that places a false sense of security above any sense of justice.

Posted by: David in Texas | Nov 19, 2010 1:57:03 PM

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