Federal Judge on the Prospect of GITMO Defendants Being Released Due to Evidentiary Exclusion: “So Be It”
Morgen on January 31, 2010 at 9:07 pm
With the Administration apparently reconsidering where to try Khalid Sheikh Mohammed, here is a perfect illustration of one of the key perils we face if they follow through on their intent to prosecute him in a civilian court. This is U.S. District Judge John C. Coughenour speaking at an event hosted by George Soros’ Open Society Institute on January 22, 2010. The main topic of discussion was the closure of Guantanamo, but here Coughenour is commenting on the use of special prosecutorial rules for trying cases against Islamic terrorists (i.e. in military tribunals):
Partial transcript [emphasis added]:
Another set of rules – consistent with our Constitution? It’s kind of hard for me to conceive what those rules would be. If people had problems with the way they gathered evidence…if they gathered evidence through harsh interrogation techniques…you know it may be that there will be some people that can’t be convicted because of the way we conducted ourselves.
So be it.
The world isn’t at a loss for dangerous people, and the fact that we are unable to convict one or more of these folks, it’s part of the price we pay for being the country we are. And we either live up to our responsibilities as being a leader in human rights, and commitment to our Constitution, or we shouldn’t profess to be what we say we are.
Full Presentation available at Fora.Tv
It should be noted at the outset that this statement is not a surprise coming from this particular judge. Coughenour presided over the case of the attempted Millennium-LAX bomber, Ahmed Ressam, in 2005. After Ressam was convicted, prosecutors sought the maximum sentence of 35 years, but Coughenour sentenced him to only 22 with credit for the 5 years Ressam was awaiting trial. With credit for good behavior, Ressam could be released in less than 10 years from now.
Even worse, as highlighted in this 2005 flashback from Ed Morrissey’s Captain’s Quarters, Coughenour used the media spotlight on this case to rant against the military tribunal system in his sentencing statement:
I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.
I would suggest that the message to the world from today’s sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused fundamental constitutional protections.
Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.
Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.
No doubt Coughenour became the darling of the Soros legal crowd only after making his beliefs known in this case. But if you combine his sentiments then, with his statement from the video above, it is clear that as a judge he would have little concern about excluding certain types of prosecutorial evidence, even if it meant setting terrorists free. After all, since “the world isn’t at a loss for dangerous people”, what would be the harm in turning a few more loose?
How many other federal judges might share his views on this? Can we afford to find out? (Note that Coughenour is actually a Reagan appointee.)
Of course what Coughenour and everyone else who subscribes to this line of thinking are willfully disregarding is that our Constitution was not intended to protect the rights of foreign enemies who seek to attack and kill us. They would have us ignore 200+ years of legal precedent during times of war for the indefinite detention, and if relevant, military prosecution of foreign enemies detained on the battlefield. Which is all the more asinine considering that these devices have been lawfully employed against regular enemy combatants, wearing the uniforms of another nation and generally abiding by the conventions of war. But with Islamic terrorism we are primarily dealing with extra-national, murderous barbarians who take advantage of the very liberties people like Coughenour claim to defend to wantonly maim and kill innocent men, women, and children.
Ultimately America will remain a beacon for freedom – and yes, human rights – only if we jealously protect our legal right to prosecute war against those who seek to destroy us. While I am reluctant to impugn the motives of people like Coughenour, by seeking to undermine our legal justification and flexibility in prosecuting the War on Terror, they endanger us all.
Category: Crime & the Law, Islamic Jihad |
The term War on Terror is such a joke, when I first heard it I honestly thought someone was pulling my leg.
As you must know full well, you’re not at war. That’s why you needed GITMO, that’s why Bush coined the term “Enemy Combatants”, that’s why these prisoners aren’t “Prisoners of War” and why the US has argued so vehemently that the Geneva Convention doesn’t apply to them. You can’t have it both ways. I don’t think most Americans have the slightest clue how arrogant the US appears in unilaterally declaring this new category of prisoners who have no rights, who occupy some ethical no-man’s land and against whom absolutely anything is permitted, without checks or constraints from any outside body.
As you will also know, I sent VS a link to an article about a man who was privately ‘arrested’ in Pakistan for a bounty, detained at GITMO, lost the sight of one eye and eventually freed without charge because (and this bit is great) he wasn’t the guy they wanted! Ooops, sorry, mistaken identity! Except without the sorry part – no blame can be attached to any US officer for his suffering or wrongful arrest.
If this situation stinks, it’s because it stank from the outset and the passing of time has done it no favours. I’m with Judge Coughenour on this. It seems I have a higher opinion of your country than you do.
February 1, 2010 @ 1:13 amWe’re not? Then what would you call the conflict that our armed forces and intelligence services are engaged in around the world? If there is another category then you seem the be the one suggesting it, not me. In my view, it is a war, plain and simple.
If you believe, as I suspect, that the mitigation of the threat posed by Islamic terroristm should be pursued as a police action, then there really isn’t much of anything that we are going to agree on related to this issue.
There is not a doubt in my mind that multiple terrorists attacks in our country and yours have only been averted due to the aggressive and persistent use of our military and intelligence power since 9/11. Saving countless numbers of innocent lives.
Regrettably innocent life has been lost on the other side as well, but we did not seek this conflict and our forces do more than any power in the history of the world has done to minimize casualties among innocent civilian populations.
With regards to the Guardian article you sent about Omar Deghayes, it is a travesty if an innocent person was wrongly detained for so long. And if the allegations of torture are true the perpetrators should be investigated and prosecuted. But of course the Guardian is only presenting one side of this and I don’t presume that he is telling the truth.
Frankly, I am highly skeptical of anyone of non-Afghani origin who claims they were in Afghanistan during this period for business or tourism. Even prior to 9/11, it was one of the most dangerous regions in the world and contains to landmarks or cultural significance for individuals from Arab countries. What it did happen to be was the central recruitment and training center for Al Qaeda.
If Deghayes and his family were residing legally and peacefully in Afghanistan, why flee to Pakistan? Based on the timeframe identified in the article (“early 2002″), this was after the Taliban government had already been ousted. Why not stay and assist with the rebuilding effort? Especially since Deghayes claims he was already working with NGO’s there building schools, etc.
I’m not saying he is lying but there is more than enough reason for me to question whether there is more to the story.
February 1, 2010 @ 9:36 am“As you must know full well, you’re not at war. That’s why … the US has argued so vehemently that the Geneva Convention doesn’t apply to them.”
Of course we’re at war, “a rose by any other name is still a rose” and your verbal rejection of existential reality… changes it, not in the least.
The Geneva Convention specifically states that it only applies to signatories uniformed combatants. Whether we are at war or not is irrelevant to that condition.
“I don’t think most Americans have the slightest clue how arrogant the US appears”
I don’t think that you have the slightest clue how little your opinion matters to us. What you call arrogance, we call a matter of survival. It is they, trying to kill us and your attempted rationalization of that existential fact is despicable. Our ‘arrogance’ will immediately end the day Islamic radicals lay down their arms.
Until then, we shall kill them wherever we find them because they are modern day Nazi’s. You don’t negotiate with violent Nazi-style aggression, you exterminate it. And one way or another they shall force us to do so because they will have it no other way.
February 1, 2010 @ 11:39 amYou can’t be at war, because to be at war you would need some entity to declare war against. Terror is a concept, an emotion, a feeling or a thought. By declaring war on terror you’ve declared open season on.. whomsoever the American government deems it appropriate to consider the enemy at any given time.
Those people – enemy combatants – need not have ever been in the combat zone prior to their arrest. They need not be informed of the charges agaisnt them. They need not be provided with te evidence against them. That evidence may turn out to be nothing more than a long range surveillance video. Of somebody else. Have you guys ever read Orwell or Kafka?
Declaring war on terror was the biggest mistake any US President has ever made. It is a ‘war’ that you can’t afford; a war that you can’t win; a war that you can’t afford to lose and a war that will never, ever end until after you give up. The more you kill the bad guys, the more you break the rules in killing the bad guys, the more people get released without charge but with stories to tell from GITMO, the more enemies you create.
February 2, 2010 @ 1:53 pm#4,
“I seem to smell the stench of appeasement in the air.” Margaret Thatcher
And, to paraphrase Churchill,
Once in a while, we stumble upon the truth, I see that you have decided to pick yourself up and hurry along, as if nothing had happened.
February 2, 2010 @ 2:14 pm[...] recently, as Morgen Richmond at Verum Serum reported, Coughenhour spoke at George Soros’s Open Society Institute and shrugged off the [...]
February 2, 2010 @ 2:30 pmKeith, the one thing I will concede is that the Bush Administration made a mistake in framing this conflict as the “War on Terror”. Not because it is an un-winnable war as you assert, or even because the notion itself can be easily ridiculed. But because it fails to clearly identify who our enemy is. Unfortunately, political correctness won out over precision in this case.
But semantics aside, we all know who the enemy is and there has never been any ambiguity about this from either the Bush or the Obama administration. We are at war with a global network of individuals and organizations who have chosen to take up arms against us in dedication to a radical Islamic ideology. (And many argue that this version of Islam is much more mainstream than we would like to believe.)
You suggested earlier that you may think more highly of America than I do. But if you really believe that our forces are indiscriminately targeting – and either capturing or killing – innocent people around the world on a wide or recurring basis, then this cannot possibly be the case.
This an insult to the professionalism and dedication of the thousands of men and women who are putting their lives on the line in service to our country. Including many of them whose only mission is to build roads, schools, water systems, and other forms of critical infrastructure for people who have lived under oppression by their own governments for centuries.
It is a fair question to ask what victory in this conflict might ultimately look like, and how it could ever be attained. And even whether the net result of our actions is resulting in more recruiting success for the enemy. But considering the evil intent of those who plot against is, and the scope in which they operate, we have no choice but to use every means of power at our disposal to counter and defeat them.
If one of, if not the most liberal Presidents in our history largely subscribes to this way of thinking, I think it is safe to say that this is a pretty mainstream view.
February 2, 2010 @ 3:26 pmIt is a war on terror, but troops are serving under OEF and OIF, which are very specific campaigns within the GWOT. What is happening in OIF and OEF are conventional fights as we have always known them from the beginning of history: remove the power structure, replace the power structure, secure the new power, fend off insurgents all the while, depart victorious.
The campaign is not the issue, it is how we treat those we capture that are not a part of OIF/OEF. As far as I know, OIF/OEF captives are regular enemy combatants that are found on a known battlefield by national military forces staging a declared and legal campaign of warfare.
Let’s just make sure we realize the difference.
February 2, 2010 @ 5:06 pm[...] the full panoply of constitutional rights to foreign al Qaeda conspirators.More recently, as Morgen Richmond at Verum Serum reported, Coughenhour spoke at George Soros’s Open Society Institute and shrugged off the prospect [...]
February 2, 2010 @ 6:16 pm[...] ask Martha Coakley. So what would happen in the event that a conviction was thrown out? Blogger Morgen Richmond notes that a federal judge, John Coughenour, has offered one possible answer. Speaking at a [...]
February 3, 2010 @ 7:22 amGeoffrey
I guess we can stand and shout at each other about whose truth is true, but I don’t recognise your truth.
Morgen
Well, that’s surely warfare 101, isn’t it? In the early days it seemed like a good thing – our enemy is whoever we say our enemy is – but now you just don’t know where the next attack might come from. In terms of the winnability of the two main conflicts, no force has ever succesfully occupied Afghanistan without the will of the people. In my opinion, we have blown any chance of that. Vietnam, anyone?
I really believe that in the early days of the ‘war on terror’ they did just that. Nobody had a clue what was going on, and nobody ruled anything or anybody out.
My point, as I’m sure you must know, was that I think America can beat the bad guys without compromising its integrity, its greatness, for the sake of expedience. But once it does that, it loses sight of what makes it great.
February 3, 2010 @ 7:54 amOut of curiosity, how much of your perception of America’s greatness would you attribute to our actions in WWI and WWII where we sacrificed hundreds of thousands of lives fighting for the freedom of W. Europe? Because by any objective measure, the cause we are fighting for now is equally as just, and the battlefield tactics we are employing are for more respectful of human rights and innocent life. Including our treatment of detainees, and any prosecution of combatants via the military tribunal system, if it is ever used.
I’m not claiming that abuses have not taken place, but I see these as isolated incidents in the midst of an overall prosecution of war that we have nothing to be ashamed of.
February 3, 2010 @ 9:03 amWell, first off, you weren’t fighting for the freedom of W. Europe, certainly not in WWII. You only got involved after Pearl Harbor, and so America’s involvement was at least in large part motivated by self defense.
But to answer your question – a significant but not major part. To me, what makes America great are the principles of freedom on which it is founded; the sense of possibility and hardwork embodied in the American Dream; the welcome I and so many I know have always experienced there; the advances it has made and continues to make for the better of mankind, and the fact that it is the worlds greatest democracy. But the fact that America is prepared to make big sacrifices for the greater good is definitely a biggy.
I’m sure as soon as I walk away from the keyboard I’ll think of others, and apologies for any I’ve missed out. To me, America has always, always been the good guys. I want it to stay that way, and I can see it slipping.
February 3, 2010 @ 2:24 pmI can see tribunals for POWs, but people arrested outside of the battlefield not in conjunction with OIF OEF and people the fall under the more general GWOT may have some reason for a trial of some sort. What do you guys think about this comprimise:
When people are brought into custody & arraigned (by whatever means) not in conjunction with a military campaign (off the streets of Damascus, or Toronto, or from the hills of Punjab, etc.) we have a civilian grand jury examine the evidence to see that there is enough evidence to prosecute the defendent as either a lawful or unlawful enemy combatant. This way we would be able to determine if someone has been operating in conjunction with terrorist organizations and subsequently decide if we want them to go through the tribunal system or otherwise. This way they still get a shot at civilian oversight, but they don’t get to speak or testify at grand jury which is what many are fearful of.
February 3, 2010 @ 2:53 pmKeith, we know your kind well, you old wooly, you. Your admiration of the US comes about because we are DIFFERENT than the rest of the world: you can see clearly enough to see that. But your European (or whereever you’re from) world view gets in the way, doesn’t it? It keeps you from taking that final, important step and saying “well I’ll try to actually SEE things the way THEY do, because it seems to be working out well for them to do so” (remember: you said you admire what we are). And so you have one foot in admiration, and the other stuck back in that old way of thinking that keeps your from actually getting with the program yourself. You, like mose other westerners, are tortured, conflicted souls when it comes to America: you like what we’ve been, but you can’t quite bring yourself to leave “Mommy Worldview” and actually ACT like us. The next best thing? Well, you can still criticize us for somehow drifting off the road down into the ditch—when YOU haven’t even STARTED down the road yourself.
February 4, 2010 @ 10:39 amWe’re not perfect, but as I said, we know your kind well. Matters little. When all is said and done, “The essential American soul is hard, isolate, stoic, and a killer. It has never yet melted.” — D.H. Lawrence
I’m quite sure that you and many others around the world admire us, and despise us, for being of such a nature.