an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ghailani and the Contradictions of U.S. Detention Policy
District judge Lewis A. Kaplan recently released a redacted version of his opinion barring a key government witness from testifying against Ahmed Khalfan Ghailani, the first Guantánamo detainee to be tried in federal court, because the witness's testimony was obtained through coercive interrogations of Ghailani at a secret CIA jail, where Ghailani claims he was tortured. It remains to be seen whether Kaplan's ruling marks only a temporary setback for the government's prosecution of Ghailani, on trial for his role in the 1998 U.S. embassy bombings in East Africa. (Abebe would have testified that he sold Ghailani TNT prior to the bombings). Apart from its impact on Ghailani's case, however, the decision underscores the continuing tensions at the heart of U.S. detention policy. Because the government conceded that all of Ghailani's interrogations were coercive, the only issue was whether the testimony of the witness, Hussein Abebe, was free of their taint. Judge Kaplan found that it was not, concluding that the testimony was a direct result of the government's interrogations of Ghailani and that Abebe was not testifying of his own free will. (The weakness of the government's evidence to the contrary—"quite incredible" Kaplan called it—may explain its decision not to appeal). The opinion is noteworthy for its careful application of Fifth Amendment suppression law to Ghailani's case. It demonstrates that even the novel problems created by prolonged extralegal detention can be subjected to considered judicial reasoning and the rule of law.
The opinion thus affirms an important principle: that federal trials will be governed by the Constitution and that federal courts will preclude the use of coerced testimony and its fruits. Years of abuse and detention at a secret CIA prison and at Guantánamo may not bar subsequent criminal prosecution, as Kaplan previously ruled in denying Ghailani's speedy trial motion. But once the choice to prosecute is made, the normal rules apply. "The Constitution is the rock upon which our nation rests," Kaplan wrote on issuing his decision. "We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand."
The trouble is that Kaplan's ruling does not exist in a vacuum and is compromised by the continued military treatment of terrorism suspects outside the criminal justice system.
Referring to this alternative paradigm in a footnote, Kaplan noted that the witness's testimony might also have been excluded by a military commission under the statute governing those proceedings. And, to be sure, a military commission judge did previously exclude evidence as the product of torture in the case of Afghan teenager Mohamed Jawad who was held at Guantánamo for more than six years before finally obtaining his release. But several factors make military commissions a more torture-friendly forum, including: the potential absence of constitutional checks, excessive secrecy, and fewer guarantees of judicial independence.
More problematic is prolonged and indefinite detention without charge, the government's preferred alternative to prosecution for all but a handful of Guantánamo prisoners. For years, these detentions were not reviewed by any court; today, they are subject to habeas corpus review under the Supreme Court's 2008 decision in Boumediene v. Bush. Although important, this review lacks critical elements of the criminal process, even though the stakes are just as high for the prisoners as if they were facing formal charges and trial. The government, for example, routinely relies on interrogation reports and summaries (themselves commonly based on second and third-hand accounts) and almost never presents any witnesses. It also has a much lower burden of proof: currently, preponderance of the evidence, although the D.C. Circuit has suggested that even that standard is too high. This all raises the obvious question: if you can simply hold someone with fewer protections and under laxer standards, why try them at all?
Kaplan himself noted (without elaboration) that Ghailani's status as an "enemy combatant" "probably" justified his continued military detention even if he were acquitted. Whether Kaplan's observation reflects a considered judgment about the legality of such detention or an effort to deflect potential criticism from the right, it is a view shared by the current administration. The Constitution may still be the nation's rock, but that means only so much when the Constitution's reach can be so easily circumscribed and circumvented. The criminal justice system exists not only to ensure fair trials but to prevent detention without trial. When its purpose instead becomes obtaining convictions—and when the government retains the trump card of indefinite military lock-up—the system is fundamentally compromised and terrorism prosecutions risk becoming a new kind of show trial.