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Smearing America in Defense of a Terrorist

On the anti-Americanism of Ghailani’s pro bono counsel.

12:15 PM, Nov 18, 2010 • By THOMAS JOSCELYN
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In response to the Ghailani verdict, the Center for Constitutional Rights (CCR) issued the following statement (emphasis added):

CCR questions the ability of anyone who is Muslim to receive a truly fair trial in any American judicial forum post-9/11. Both the military commission system and federal criminal trials have serious flaws.  However, on balance the Ghailani verdict shows that federal criminal trials are far superior to military commissions for the simple yet fundamental reason that they prohibit evidence obtained by torture.  If anyone is unsatisfied with Ghailani's acquittal on 284 counts, they should blame the CIA agents who tortured him.

The first sentence of the statement is remarkable for its crude anti-Americanism. How else can one read it? CCR is essentially claiming that America is so religiously bigoted that it doubts whether “anyone one who is Muslim” can “receive a truly fair trial.” This is not just about military commissions. CCR is denouncing the entire American legal system and, in fact, America herself.

Why is this important? Well, CCR has organized much of the legal opposition to America’s counterterrorism policies. CCR was instrumental in getting the right for Guantanamo detainees to challenge their detention in federal courts. That has gone so well that one D.C. district judge even ruled that a top al Qaeda recruiter who assisted the 9/11 hijackers should be released. The D.C. Circuit Court, thankfully, overturned that decision. But there have been a number of other specious rulings handed down by the D.C. district courts as well, and only some of them have been appealed.

Along with the ACLU, CCR is challenging the Obama administration’s legal authority to kill top al Qaeda recruiter Anwar al Awlaki while he is on the lam in Yemen, where he plots terrorist activities and calls for attacks against Americans. CCR has been involved in a variety of other legal challenges to America’s counterterrorism policies too. (For background on CCR, see Marc Thiessen’s excellent piece.)

In the Ghailani matter, CCR filed a brief arguing that Ghailani had been denied his right to a speedy trial. Judge Kaplan shot down CCR’s brief. Part of Judge Kaplan’s reasoning relied on the value of the intelligence Ghailani gave up while in the CIA’s custody.

Judge Kaplan concluded that the CIA obtained “useful intelligence” from Ghailani and “Ghailani continued to be of intelligence value throughout his time in CIA custody.” Therefore, Kaplan found, the U.S. government was right to keep him in detention outside the court system as it learned what he knew about al Qaeda’s active plotting.

Some of the intelligence gleaned from Ghailani was included in a June 3, 2005 CIA memo entitled, “Detainee Reporting Pivotal for the War Against Al Qaeda” (emphasis added):

Ahmed Khalfam Ghailani (a.k.a. Haytham al-Kini, a.k.a. Fupi) a Tanzanian al Qaeda member who was indicted for his role in 1998 East Africa US Embassy bombings, has provided new insights into al Qaeda's skills and networks. As a facilitator and one of al Qaeda's top document forgers since the 11 September attacks, with access to individuals across the organizations (sic) until his arrest in July 2004, he has reported on how he forged passports and to whom he supplied them.

Judge Kaplan found that the U.S. government’s characterization that the intelligence given up by Ghailani was valuable to be “persuasive.” Furthermore, he ruled that “Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary.” That is, Ghailani’s counsel could not argue with the U.S. government’s claims about the value of the intelligence. (This undermines, of course, the widespread claim that the CIA’s enhanced interrogation program produced little to no valuable intelligence.)

You won’t find any of this in CCR’s ridiculous statement, which smears America in the defense of a lethal al Qaeda terrorist who has the blood of 224 people on his hands.

CCR’s statement calls to mind the debate some months ago about the role of lawyers in the war on terror. Some have argued that by representing “unpopular” clients they are merely adhering to a noble legal tradition in the same manner as John Adams, who defended British soldiers years prior to the Revolutionary War. Granted, some lawyers probably are compelled by their own notions of legal principle. But not all of them are.

John Adams sought to create a free society in which all faiths can be practiced and none are enforced by the state. He succeeded.

This nation’s second president probably would not appreciate CCR’s smear of the nation he helped found. And CCR is not just standing up for the “right” of a terrorist to receive a fair trial. The organization doubts whether John Adam’s America can be fair to Muslims at all.

Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

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