Balkinization  

Saturday, November 20, 2010

United States v. Ghailani (S.D.N.Y.)

Eugene R. Fidell

Unsurprisingly, the verdict in the Ghailani case has provoked a good deal of discussion and, equally unsurprisingly, commentators on all sides of the long-running where-should-we-try-terrorists debate have found in it confirmation of policy positions they have previously espoused. Because this ground is being plowed so thoroughly, I don't want to revisit it here. I would, however, like to offer a very short take on an important aspect of the case that ought not to be overlooked. Recall that Judge Kaplan suppressed the testimony of Hussein Abebe, a government witness whose identity only came to light as a result of abusive interrogation of Mr. Ghailani. The government (1) perhaps unwisely, stressed how important Mr. Abebe's testimony was; (2) assumed for purposes of the defense's motion to suppress that Mr. Ghailani's statements were coerced; (3) did not exercise its right to appeal the suppression ruling; and (4) did not abandon any counts in the indictment in light of that ruling. As readers who have not already made up their mind ponder what the verdict means for where (if anywhere, as that too is an option to some) the so-called "high value detainees" such as Khalid Sheikh Mohammed should be tried and who bears responsibility for what many view as an unsatisfying outcome despite the 20-years-to-life sentence Mr. Ghailani will receive, it is important not to lose sight of the root cause of the outcome: he was subjected to coercion during his interrogation. There's the problem.

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