Foreign Policy Blogs

The Rule Of Law?

There was an interesting development yesterday in the case of Ahmed Ghailani, who the U.S. has brought to court for his participation in the 1998 bombings in Kenya and Tanzania.  Judge Lewis Kaplan ruled that the court would not accept testimony from the U.S.’s key witness because the U.S. learned about this witness through coerced interrogation.  The U.S.’s case, which once seemed certain, now might be in jeopardy.

Kaplan’s move re-ignited debate about the sensibility of trying terrorists in civilian courts.  Andrew McCarthy argues that this demonstrates that terrorists should be tried in military tribunals, where “there would be fewer hurdles to placing the most important evidence.”  Glenn Greenwald asserts that those “who think this way, by definition, simply do not believe in the rule of law.”  He goes on to write:

A system that guarantees guilty verdicts is not one that operates under the rule of law.  Those are called “show trials” — at least they used to be when other countries did that.  And the demand that torture-obtained evidence be admissible not only removes one from adherence to the rule of law, but from the civilized world as well.  The whole point of a “justice system” is that there are rules that are well-established and which apply equally to everyone.

But Greenwald goes too far.  As Jack Goldsmith notes, Judge Kaplan acknowledged that, even if Ghailani were found innocent, the U.S. would still be legally entitled to hold him.  As the decision states:

Moreover, it is appropriate to emphasize that Ghailani remains subject to trial on the pending indictment, that he faces the possibility of life imprisonment if convicted, and that his status as an “enemy combatant” probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

So yes, this doesn’t seem to resemble the rule of law, being that Ghailani could be tried, found innocent, and then still detained.  But even though it doesn’t look like or smell like a fish, it’s still a fish.  As I wrote last year, this is the reality of the two-tiered system that Obama’s Justice Department devised to deal with terrorists.  As far as I can tell, the idea is that these are supposed to be “show trials.”  The Justice Department will only allow cases into civilian courts that it believes it can win.  And if they lose, they retain the right to keep the detainees imprisoned anyway.  But this is our rule of law, though it may not seem worthy of the term.