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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.

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Category: Crime & the Law, Islamic Jihad |

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