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Gingersnap
11-18-2010, 10:37 AM
Ahmed Ghailani, Gitmo detainee, acquitted of all but 1 charge in N.Y.

http://i53.tinypic.com/k9arls.jpg
'The least worst place'
Guantanamo Bay is located on the southeastern tip of Cuba, an arid, sun-parched stretch of land. It's an unusual place, a collection of prison camps, suburban-style neighborhoods and military complexes where 5,500 military personnel and contractors live alongside "banana rats," iguanas and legions of land crabs.


By Peter Finn
Washington Post Staff Writer
Thursday, November 18, 2010; 12:12 AM

The first former Guantanamo Bay detainee to be tried in federal criminal court was found guilty on a single conspiracy charge Wednesday but cleared on 284 other counts. The outcome, a surprise, seriously undermines - and could doom - the Obama administration's plans to put other Guantanamo detainees on trial in U.S. civilian courts.

After deliberating for five days, a jury of six men and six women found Ahmed Ghailani, 36, guilty of conspiracy to damage or destroy U.S. property but acquitted him of multiple murder and attempted-murder charges for his role in the 1998 bombings of U.S. embassies in East Africa.

The Obama administration had hoped that a conviction on most, if not all, of the charges would help clear the way for federal prosecutions of other Guantanamo detainees - including Khalid Sheik Mohammed and four alleged co-conspirators accused of organizing the Sept. 11, 2001, attacks. The administration did not want to rely exclusively on the military commissions that the George W. Bush administration had made a centerpiece of its detention policy.

President Obama's strategy, however, has run into fierce, cross-party opposition in Congress and New York, in part because of concerns that it would be harder to win convictions in civilian court.

The failure to convict Ghailani, a native of Tanzania, on the most serious terrorism charges will bolster the arguments of those who say the military prison at Guantanamo Bay, Cuba, should be kept open, both to host military commissions for some prisoners and to hold others indefinitely and without trial under the laws of war.

Wa Po (http://www.washingtonpost.com/wp-dyn/content/article/2010/11/17/AR2010111705663.html?hpid=topnews)

djones520
11-18-2010, 10:58 AM
My question on this is, why was he found not-guilty? Was it that the prosecuters really dropped the ball? That the jury pull was drawn from an area that is really against the idea of the WoT and GITMO? Or was the guy really innocent?

All three of those could be pretty bad reasons. I'd like to know which it was before I really pass judgement myself.

Odysseus
11-18-2010, 03:19 PM
The failure to convict Ghailani, a native of Tanzania, on the most serious terrorism charges will bolster the arguments of those who say the military prison at Guantanamo Bay, Cuba, should be kept open, both to host military commissions for some prisoners and to hold others indefinitely and without trial under the laws of war.

Wa Po (http://www.washingtonpost.com/wp-dyn/content/article/2010/11/17/AR2010111705663.html?hpid=topnews)
Oh, now they admit that indefinite detention of combatants during wartime is legal? How nice. Where was this reading of the laws of war when Bush was in office? :mad:

He was acquitted because the rules of evidence in civilian courts are geared towards acquittal, classified evidence was excluded and his lawyers played the system like a fiddle.

3rd-try
11-18-2010, 05:54 PM
Gotta love Eric Holder. He's as loony as Michel Moore and we're paying his lavish salary.

m00
11-19-2010, 12:34 AM
Oh, now they admit that indefinite detention of combatants during wartime is legal? How nice. Where was this reading of the laws of war when Bush was in office? :mad:

He was acquitted because the rules of evidence in civilian courts are geared towards acquittal, classified evidence was excluded and his lawyers played the system like a fiddle.

Basically, it was the correct result for a civilian trial where hard evidence (for whatever reason) is not presented by the prosecution. Which, in this case, I believe was all classified...fortunately civilians get public trials. However, court records have been sealed before. Maybe limit the jury pool to people with a security clearance?

But gee, what did Obama think would happen? Everything would magically work out? I'm generally against military tribunals for enemy combatants (because "enemy combatant" is not a technical legal term - it can be applied by the Executive to whomever). But surely with all the legal minds on this one there is some non-stupid outcome that could have been found.

Odysseus
11-19-2010, 01:45 AM
Basically, it was the correct result for a civilian trial where hard evidence (for whatever reason) is not presented by the prosecution. Which, in this case, I believe was all classified...fortunately civilians get public trials. However, court records have been sealed before. Maybe limit the jury pool to people with a security clearance?

But gee, what did Obama think would happen? Everything would magically work out? I'm generally against military tribunals for enemy combatants (because "enemy combatant" is not a technical legal term - it can be applied by the Executive to whomever). But surely with all the legal minds on this one there is some non-stupid outcome that could have been found.

Military tribunals are appropriate in cases where war crimes have occurred. The use of civilian aircraft, with passengers, as missiles, qualifies. Where no war crimes have occurred, the Geneva Convention prescribes indefinite detention so long as hostilities last. If the terrorists never stop, then their buddies live a long life in Gitmo.

The problem with civilian trials is that American law presumes innocence when dealing with civilian criminals. We have to prove guilt in order to inflict punishment. In warfare, the simple act of fighting on the opposite side is what makes you a combatant (or "party to the conflict" which is the legal term), and the rules that apply are the Geneva and Hague Conventions. If you are captured on the battlefield, your status is immediately determined by what you were carrying and how. If you were in an enemy uniform, under arms, you're a combatant, and subject to the protections afforded to lawful combatants. If you are under arms but not in uniform, or have acted against protected persons, you are still a combatant, but are in violation of the laws of warfare and not protected by the conventions.

What people who don't deal with this stuff on a daily basis don't get is that terrorists, by violating the laws of warfare, are specifically denied the protections of the conventions. The closest thing to terrorists in international law is pirates, and pirates can be tried by summary courts on site, or executed upon capture if they are engaged in piracy when caught.

3rd-try
11-19-2010, 07:30 AM
Odysseus, thanks for that clarification. It all makes common sense. And, that suggests we once had some rules makers with common sense.....That must have been nice.

NJCardFan
11-19-2010, 08:52 AM
And that scumbag lawyer Scott Fensterbaker believes this piece of shit should be released even though he bought the materials used to make the bombs. I really hate lawyers.

m00
11-20-2010, 12:18 PM
The problem with civilian trials is that American law presumes innocence when dealing with civilian criminals. We have to prove guilt in order to inflict punishment. In warfare, the simple act of fighting on the opposite side is what makes you a combatant (or "party to the conflict" which is the legal term), and the rules that apply are the Geneva and Hague Conventions. If you are captured on the battlefield, your status is immediately determined by what you were carrying and how. If you were in an enemy uniform, under arms, you're a combatant, and subject to the protections afforded to lawful combatants. If you are under arms but not in uniform, or have acted against protected persons, you are still a combatant, but are in violation of the laws of warfare and not protected by the conventions.

What people who don't deal with this stuff on a daily basis don't get is that terrorists, by violating the laws of warfare, are specifically denied the protections of the conventions. The closest thing to terrorists in international law is pirates, and pirates can be tried by summary courts on site, or executed upon capture if they are engaged in piracy when caught.

My biggest concern is that in the War on Terror the battlefield is "everywhere," and the Executive Branch of government gets to unilaterally determine who is a "combatant" and who isn't. That seems like that kind of power and authority is just asking to be abused. It effectively means the Executive Branch can detain any citizen, and circumvent due process and bypass the entire Constitution, because it alone determines that someone is the status of a combatant.

SaintLouieWoman
11-20-2010, 09:02 PM
And that scumbag lawyer Scott Fensterbaker believes this piece of shit should be released even though he bought the materials used to make the bombs. I really hate lawyers.

It's why Bush was a better president than Obama. He wasn't a lawyer; he was a businessman. I don't know what in the hell Holder is. He's supposed to be a lawyer, but sadly, is one with a definite agenda. That agenda is not to defend the US and its citizens.

Constitutionally Speaking
11-21-2010, 07:08 PM
My question on this is, why was he found not-guilty? Was it that the prosecuters really dropped the ball? That the jury pull was drawn from an area that is really against the idea of the WoT and GITMO? Or was the guy really innocent?

All three of those could be pretty bad reasons. I'd like to know which it was before I really pass judgement myself.


Because they won't use incriminating information if it risks exposing information important to national security.

They can't use the best evidence.

Madisonian
11-21-2010, 07:46 PM
I don't know, not being a lawyer in the first place and not having been at the trial, but I would assume from what I do know about rules of evidence is that since the defendant was not given his Miranda reading upon his arrest or seizure and that warrants were not issued or executed pursuant to any state or federal law, that most of the evidence against him would have been either not admissible or thrown out upon presentation and if not, certainly upon appeal.

Odysseus
11-22-2010, 12:12 AM
My biggest concern is that in the War on Terror the battlefield is "everywhere," and the Executive Branch of government gets to unilaterally determine who is a "combatant" and who isn't. That seems like that kind of power and authority is just asking to be abused. It effectively means the Executive Branch can detain any citizen, and circumvent due process and bypass the entire Constitution, because it alone determines that someone is the status of a combatant.

No, these guys were either caught in combat or were identified as high-level al Qaeda members, and none of them are American citizens. The only cases in which Americans were determined to be enemy combatants are those in which they were captured in combat (John Walker Lyndh) or those who have announced their membership in al Qaeda or some other terror group (Anwar al-Awlaki) and acted on that. Even Nidal Hasan, who shot up FT Hood, wasn't declared an enemy combatant (although he should have been, and then tried for treason as well as murder). The Constitution allows for the treatment of Americans who act as enemy combatants to be treated as such, under Article III, Section 3, which states:


Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Clearly, those persons holding American citizenship who attempt to kill Americans on behalf of the global jihad are levying war against us, adhering to our enemies and giving them aid and comfort. For those who are not US citizens, conducting terrorist operations against the US is no different from the saboteurs who were captured in the US during WWII. This isn't a case of an out of control executive branch assuming guilt, but established precedent and the rule of law, including international law, defining the terms by which we identify combatants.

m00
11-22-2010, 12:29 AM
No, these guys were either caught in combat or were identified as high-level al Qaeda members, and none of them are American citizens. The only cases in which Americans were determined to be enemy combatants are those in which they were captured in combat (John Walker Lyndh) or those who have announced their membership in al Qaeda or some other terror group (Anwar al-Awlaki) and acted on that. Even Nidal Hasan, who shot up FT Hood, wasn't declared an enemy combatant (although he should have been, and then tried for treason as well as murder). The Constitution allows for the treatment of Americans who act as enemy combatants to be treated as such, under Article III, Section 3, which states:

Personally, I see way too much legal wiggle room here for big government. I have heard time and time again that the war on terror is fought "everywhere." If the battle is everywhere, "in combat" can be anything. Get a government lawyer in a court-room, using a cell phone can be "in combat."

Oh, what - the feds captured you in your home? Sorry, that was on the battlefield! What's the evidence against you? Sorry, you are an enemy combatant and you don't get a trial or to hear the evidence against you. The crimes you committed are classified. Who says you are an enemy combatant? The government of course, and they would never lie.

This is just my personal feeling on the matter, but I just don't trust government with the power to get to pick and choose who is worthy of due process and who isnt. I know about Article III, Section 3 but I don't think that was written with the idea of a permanent state of war in mind. Especially because we redefined "war" with the War Powers Resolution and the Gulf of Tonkin Resolution.

Odysseus
11-22-2010, 01:52 PM
Personally, I see way too much legal wiggle room here for big government. I have heard time and time again that the war on terror is fought "everywhere." If the battle is everywhere, "in combat" can be anything. Get a government lawyer in a court-room, using a cell phone can be "in combat."

Oh, what - the feds captured you in your home? Sorry, that was on the battlefield! What's the evidence against you? Sorry, you are an enemy combatant and you don't get a trial or to hear the evidence against you. The crimes you committed are classified. Who says you are an enemy combatant? The government of course, and they would never lie.

This is just my personal feeling on the matter, but I just don't trust government with the power to get to pick and choose who is worthy of due process and who isnt. I know about Article III, Section 3 but I don't think that was written with the idea of a permanent state of war in mind. Especially because we redefined "war" with the War Powers Resolution and the Gulf of Tonkin Resolution.

There is a clearly marked line that distinguishes between combat and non-combat ops. Combat means just that; holding a weapon and using it. Nidal Hasan was taken down in combat, even though it was in CONUS. The Times Square bomber, on the other hand, was apprehended after having planted his bomb, which was not combat. Both are getting due process, but the process differs for combat vs. civil/criminal actions, as it should. A civilian criminal has the presumption of innocence, while a combatant does not. Once captured, a combatant can be detained for the duration of hostilities, while a civilian has a right to a speedy trial. This, BTW, is why we should not be conducting trials of the terrorists at Gitmo. During hostilities, they are combatant prisoners. War crimes trials should be held after the war, when they cannot be used as a tool of combat.

lacarnut
11-22-2010, 02:26 PM
My question on this is, why was he found not-guilty? Was it that the prosecuters really dropped the ball? That the jury pull was drawn from an area that is really against the idea of the WoT and GITMO? Or was the guy really innocent?

All three of those could be pretty bad reasons. I'd like to know which it was before I really pass judgement myself.

From what I have read, 1 jurror out of the bunch wanted to find him not guilty on all counts. So, they compromised and the holdout agreed to find him guilty on 1 count.

You never know what is going to happen in a trial. Idiot Holder should know better. I was on a rape and armed robbery case. There was no question about guilt but we had one juror who did not want to see this young punk put away for life. We prevailed but all it takes is one bleeding heart liberal to muck it up.

Odysseus
11-22-2010, 09:21 PM
From what I have read, 1 jurror out of the bunch wanted to find him not guilty on all counts. So, they compromised and the holdout agreed to find him guilty on 1 count.

You never know what is going to happen in a trial. Idiot Holder should know better. I was on a rape and armed robbery case. There was no question about guilt but we had one juror who did not want to see this young punk put away for life. We prevailed but all it takes is one bleeding heart liberal to muck it up.

Who in their right mind would want to acquit that monster? I have a feeling that there's either a BDS case involved, or a member of the Religion of Peace (TM) found his way onto the jury.

Which reminds me, in jury selection in civilian trials, will the defense be able to exclude Jews and Christians?

djones520
11-22-2010, 09:36 PM
Who in their right mind would want to acquit that monster? I have a feeling that there's either a BDS case involved, or a member of the Religion of Peace (TM) found his way onto the jury.

Which reminds me, in jury selection in civilian trials, will the defense be able to exclude Jews and Christians?

If that was the case, it totally had to be a DUmmie type.