For those of us who believe in things like the Rule of Law, the decision in the Ahmed Ghailani terrorism case to exclude tainted witness testimony- linked to the defendant only through the torture of said defendant--is something to be celebrated. After all, with judicial supplication before the State Secrets privilege and the Obama administration's steadfast refusal to investigate (let alone prosecute) the architects of the national shame of Abu Ghraib, Guantanamo Bay, Bagram and untold "black ops" sites around the world, we've got to take our victories where we can.
One might imagine that law-and-order, strict-constructionist types on the right would join us in our celebration. It would, however, take quite an imagination.
Because quite the opposite has happened.
The right-wing media were predictably quick to spit their bile. Rupert Murdoch's New York Post offered the ruling as proof that "terrorist trials don't belong in civilian court," while its chief competition for the Beck/Hannity/O'Reilly audience that reads, the New York Daily News editorialized that it was evidence of the "disastrous folly of trying Al Qaeda enemy combatants in civilian court." Those were some of the tamer pronouncements.
Even the more sober political press was given to characterizing the decision as a stinging indictment of civilian prosecution. Politico's Josh Gerstein blogged, "Ruling could be setback for civilian terror trials." The venerable CBS News framed the story by quoting professional fear-monger Liz Cheney saying, "If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it [in this ruling]."
Each of these news reports, and the dozens more like them, is fundamentally flawed; likely by design in coverage seeking to politicize the case, and at least through disappointing superficiality in others.
One could quite rationally argue that Judge Lewis Kaplan's ruling is in fact a ringing endorsement of the propriety of federal courts to hear terrorism cases. What, after all, is wrong with a court of justice applying centuries-old legal principles to ensure a fair, unsullied trial of evidence to determine the guilt or innocence of the accused? If the purpose of the trials is to seek big-J Justice, Judge Kaplan's decision was not merely proper, but the only decision we should accept.
Because the opinions of the Post, the Daily News and their fellow travelers on the right assume that only conviction is acceptable, and anything that might interfere with that -- e.g., adherence to the U.S. Constitution, international law, and the basis of every civilized legal system since the Inquisition -- is surrender to the terrorists. Tacit in those assumptions is the belief that the much-wanted military tribunals will produce those convictions, and no panty-waist laws are going to get in their way. They want, apparently, what Brian Dennehy offers Danny Glover in Silverado: "A fair trial, followed by a first-class hanging."
That flagrant disregard alone should be enough to give any fair-minded reporter pause to rethink her framing of the issue.
Second, framing the decision as an indictment of the Obama administration's use of civilian courts is an editorial choice that casts blame on the wrong party. Neither President Obama nor Attorney General Holder, the other frequent scapegoat for the decision, is responsible for the policy that rendered Ghailani's tortured statements and the fruit of that poisonous tree inadmissible. The blame should be placed at the doorstep of President Bush, Vice President Cheney, Office of Legal Counsel lawyers John Yoo and Jay Bybee, and the other apparatchiks of a lawless administration that rationalized, authorized and codified torture as national policy. (As Greenwald and Eviatar note, government lawyers did not challenge Ghailani's assertion that he was renditioned to CIA black sites and tortured, making it established legal fact for purposes of the motion that he was "coerced.")
Finally, there is the issue of many conservatives' blatant hypocrisy on the issue of judicial activism. They wail and rage when judges "disregard" the law (from their self-interested perspective) to render decisions contrary to conservative goals. Indeed, they celebrated Kaplan's earlier decision, rejecting Ghailani's claim that his torture and six years in detention denied him a speedy trial and merited dismissal of the charges against him, a decision The Weekly Standard nonsensically calls "a logical contradiction" to the current decision.
The current decision is founded in the U.S. Constitution, Supreme Court precedent, Article 15 of the UN Convention Against Torture (which is controlling law, pursuant to Article 6, section 2 of the Constitution), and federal law. Any lawyer not invested in a contrary result will tell you that Judge Kaplan was essentially required to rule as he did. Had he done otherwise, it would have been blatant judicial activism, i.e., a ruling based on the result desired, rather than one compelled by the evidence and the law.
Still, one can hardly blame the conservative media and their loudest voices for their bilious nature. It is, after all, what they do--blame Obama and fan the flames of fear. Can't stop the birds from singing, and all that.
But the mainstream media, the presumptively fair-minded and actually balanced, should know better. When you accept the political frame of a party invested in scoring points, as is clearly the case with CBS and Liz Cheney, or when you reduce an issue of law and justice to its basest political score as Gerstein did, you demean both the process and the result.
Those of us who believe in the Rule of Law are equally invested in protecting our national safety and in capturing and convicting those who have done us harm. There is ample evidence that we don't have to give up our principles to yield the benefits of real national security. As Gerstein himself reported just days before the Ghailani ruling, the guilty plea and life sentence meted out to failed Times Square bomber Faisal Shahzad was done by the book, using civilian law enforcement, investigation, prosecution and courts. No torture, no rendition, no tainted evidence, no military show trial.
If Ghailiani is guilty, isn't it likely there is evidence beyond that extracted through torture? And if there isn't, what faith can we put in a court that would convict on that morally defective basis alone?
More fundamentally, what faith can we put in news media that don't bother to ask those questions?