Tag: robert chesney

The Ghailani Verdict

You’ve probably heard that a jury found Al Qaeda bomber Ahmed Ghailani guilty on only one out of 286 charges associated with the 1998 embassy bombings in Kenya and Tanzania.

A predictable debate followed. Glenn Greenwald cited the outcome as proof that the system works, while Liz Cheney, Debra Burlingame and Bill Kristol described the trial as a reckless experiment. Thomas Joscelyn called the trial a miscarriage of justice.

The most insightful commentary I’ve seen is over at Lawfare. Benjamin Wittes and Robert Chesney summed things up pretty well: “Trial in federal court didn’t work out the way the Obama administration wanted, but it wasn’t a disaster–and we can’t honestly say it worked out worse than the military commission alternative would likely have done.”

I’ve disagreed with Wittes on lawfare issues before, but he and Chesney are right on this case: (1) the defendant will serve a minimum of twenty years in jail, possibly life; (2) it’s not certain that the military commissions would have allowed evidence obtained by coercion (Charlie Savage also made this point in his article for the New York Times), (3) the conspiracy conviction in civilian court is solid on appeal, but not necessarily so in a military commission (conspiracy is not a traditional law of war violation, and three sitting Supreme Court justices have questioned its application in that forum); (4) the forum of conviction is less ripe for attack in courts of law and public opinion.

That’s a good outcome.

Obama Administration Wins in State Secrets Case

A split panel of the 9th Circuit Court of Appeals decided, on a 6-5 vote, that a lawsuit filed by extraordinary rendition and torture victims is barred by the State Secrets Privilege. Over a year ago, a three-judge panel ruled that the case should proceed with traditional application of the Privilege — individual pieces of evidence would be excluded based on their secret nature, but other evidence would remain available for litigation.

Robert Chesney has some thoughtful commentary on how the current state of the law deals with rule of law versus individual justice concerns. By any measure this is, as Glenn Greenwald notes, a broad victory for the government and further evidence of continuity between the Bush and Obama administrations’ approaches to terrorism.