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Is it too much to suggest that the federal government is putting all the tools in place that could one day lead to a totalitarian regime? Patriot Acts, Military Commissions, NSA domestic spying, state secrets privilege, national security letters, and now a bill moving through the Senate that will permit censorship of the internet. The constitution backed up by the judiciary should be protecting us from the invasive policies of the legislature and executive but has manifestly failed to do so.

While one does not expect much from “analysis” coming from the mainstream media, the tone of some recent press coverage has been particularly disturbing. Driving into Washington yesterday I listened to a succession of NPR news broadcasts. All reported Wednesday’s acquittal of Tanzanian Ahmed Ghailani on 284 of 285 counts relating to the 1998 bombing of the US Embassy in Dar es Saalam. The coverage suggested that the trial was a failure from the point of view of the Obama Administration in that it did not obtain a complete conviction. The Washington Post went ever further, reporting that the outcome supported the validity of “concerns that it would be harder to win convictions in civilian court.” Proposed solutions aired by the Post include military tribunals where the rules of evidence are less stringent and also to avoid trials completely through the option “to hold others indefinitely and without trial under the laws of war.”

Nowhere was it suggested that the acquittal just might have meant that the government case against Ghailani was not very good, at least not compelling enough to convince the six men and six women that constituted the Federal court’s jury in New York City. Ghailani’s defense was that he was an unwitting dupe who was fooled by the conspirators into buying a truck and gas tanks that were used in the attack. The government tried to introduce a witness who apparently had been identified by Ghailani himself while under torture by the CIA and who also might have been tortured, but the judge ruled the testimony inadmissible. Ghailani was consequently convicted on the one charge of conspiring to destroy US government property. The presiding Judge Lewis Kaplan hailed the ruling, noting “…the constitution is the rock upon which our nation rests. We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.” But he also supported the government’s “right” to hold Ghailani indefinitely as an enemy combatant during an ongoing war.

Now for all we know Ghailani might be guilty, but the government was unable to make the case. The presumption by our political class that the threat of terrorism means that you need to create separate legal systems designed to convict rather than to protect constitutional rights is about as wrongheaded as can be and it is astonishing that many Americans are supporting such a disturbing concept. The right to defend oneself before a jury composed of peers is fundamental to maintain our remaining liberties. Ghailani has been held for six years at CIA prisons and at Guantanamo and will be spending 20 more years in jail, so he is hardly an imminent danger to society, but the argument that someone is a terrorist just because a CIA interrogator thinks that to be the case must be tested in our courts lest all of us someday wind up being judged as terrorists every time we oppose what the government is doing.

(Republished from The American Conservative by permission of author or representative)
• Category: Foreign Policy • Tags: Government Surveillance 
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  1. Mr.Giraldi, If you want justice,go to church not to Federal court. The courts are there to enforce the will of the political class. The Constitution has been so changed, twisted and ignored that the Bill of Rights is meaningless.

  2. Anonymous • Disclaimer says:

    But Mr. Giraldi, “we’re at war!” According to Norman Podhoretz we’re going to be at war for a few generations. We’ve all just got to get used to it. After all the Muslims have been killed we’ll be safe again and can enjoy being the world’s greatest democracy again, for a few months at least, until we have to go to war with China, assuming that Israel will permit us to spare the troops and money to fight on another front. In the meantime all this whining about “liberties” sounds suspiciously Palestinian to me. Eric Cantor won’t like that at all.

  3. TomB says:

    I think democracy just ran into huge problem. Almost by definition no-one is going to get to power in a democracy by blaming the people. So if the people of the United States have for three-plus decades supported what is in essence a colonial/ethnic cleansing effort in the Mideast, when those who naturally oppose that strike back at them the people in the United States of course are not going to have anyone in power telling them that’s the cause. Instead they are going to be told that they have just been attacked for no reason at all. (“They hate us for who we are!”) And thus, naturally, we must go to war with “they.” No matter how many hundreds of millions if not billions of them there are, and no matter how impossible it might be to “win.”

    No matter too, since it’s a war and all wars are “to the death” things (much less wars against people who supposedly hate you because of something you can’t change), less important things have to go by the wayside. Such as invading other countries that have nothing to do with the attack upon you on false pretenses and constitutional rights and etc.

    Except, that is, maybe for the ultra-personal things such as suffering a pat-down before flying off to see Grandma at Thanksgiving. *That’s* when you look around and ignore who started all such recent intrusions in the name of fighting the “war on terror” and say that it’s all because of that Black man currently in the White House with the funny name which might indicate he’s either a moslem or a socialist.

    Meanwhile, the towering intellect who started that war on false pretenses against another country having nothing to do with 9/11, and who did not just start the modern intrusiveness and did not even once say it was regrettable even but indeed was patriotic, is running around the country hawking his book. A book in which he explains that his worst moment as President was not deciding to go to war against a country having nothing to do with 9/11 and thereby having to decide to commit unknown thousands if not tens of thousands or more to death and the world’s economy to uncertainty. Nor for instance was it when the Secretary of the Treasury and the head of the Federal Reserve came in and told him that the entire U.S. economy was on the verge of meltdown in a matter of days.

    No, his worst moment was when some rap “artist” said he didn’t care about Black people.

    It’s farcical.

    A good article by Doug Bandow:

  4. an excellent post altogether. i too have noticed that “[n]owhere was it suggested that the acquittal just might have meant that the government case against Ghailani was not very good”

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