Where the winds carry freedom 4

Ahmed Ghailani, the al-Qaeda terrorist who participated in the bombing of the U.S. embassies in Kenya and Tanzania in 1998, will be sentenced this month, perhaps to life imprisonment, but perhaps to as little as 20 years.

Ghailani was transported from Guantanamo Bay to New York City to await trial in the United States District Court for the Southern District of New York in June 2009. When the case came to trial, the judge disallowed the testimony of a key witness. On November 17, 2010, a jury found him guilty of one count of conspiracy, but acquitted him of 284 other charges including all murder counts. Critics of the Obama administration said the verdict proves civilian courts cannot be trusted to prosecute terrorists because it shows a jury might acquit such a defendant entirely. Supporters of the trial have said that the conviction and the stiff sentencing prove that the federal justice system works.

Not if he gets only 20 years.

Last month the House banned funding to bring Guantanamo prisoners to the US to be tried as criminals in federal courts.

Predictably, this elicited howls of protest from those who hold the strange opinion that prisoners of war should be tried individually like civilian citizens; the pro-Islam sentimentalists (such as President Obama and Attorney-General Eric Holder) who want “Gitmo” closed, pretending that it’s a tough penal institution rather than the holiday-camp safety-pen it actually is.

Prisoners of war should be kept until the war is over. If trials must be held, they should be conducted by military tribunals, and death sentences should be carried out promptly with guns.

Khalid Sheikh Mohammed the planner of 9/11, Richard Reid the shoe-bomber, Nidal Malik Hasan the Fort Hood mass-murderer, Umar Farouk Abdulmutallab the underwear-bomber, Faisal Shahzad the Times Square car-bomber, and all Muslim terrorists waging jihad against the non-Muslim world should be brought before military tribunals.

This is not what is happening. But if jihadists apprehended on American soil are to be tried as criminals, their sentences should be as harsh as the law allows.

Richard Reid was tried as a criminal and sentenced to life imprisonment.

Judge William Young made a most eloquent case for trying terrorists individually as criminals. He declared in his ruling, delivered January 30, 2003:

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist … And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice. ..

It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see, that justice is administered fairly, individually, and discretely. It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in their representation of you before other judges.

We are about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake though. It is yet true that we will bare any burden, pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow, it will be forgotten, but this, however, will long endure. Here in this courtroom and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done.

We agree that Reid was not a soldier, and that he is a terrorist. But he tried to blow up a civil aircraft in flight as a Muslim carrying out his duty to wage Holy War, the war that America went to fight in Afghanistan.

On that point we disagree with Judge William Young. But some words of his we think are worth recalling in opposition to those whose hearts bleed for the inmates of Guantanamo :

It seems to me you hate the one thing that is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose. Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea.

And long may they do so, however hard the Obama administration tries to bring them under government control.

But such winds should not fan the cheeks of Islam’s Holy Warriors.

  • Mrs Westrop

    The point should be that what matters is the truth.

    Ghailani got off because the judge would not allow the chief witness to give evidence. The judge reasoned that this witness was located after coercive interrogation of the accused; and so, says the judge, in a non sequitur, the separate witness could not be trusted. It was such nonsense: the way they found the witness who supplied the explosives does not make that witness any less reliable. The judge should have weighed up whether, despite the coercion, the information revealed the truth.

    It seems to me that the real problem here is that terrorists can only be tried successfully in a tribunal which can lay aside some of the rules which make no sense in a state of war. I would suggest three main areas : 1 evidence should be admitted, however it is obtained, if it is likely to be true. 2. Sources should be revealed, as far as is possible (to fulfil the brilliant Judge Young’s injunction “So that everyone can see, truly see, that justice is administered fairly, individually, and discretely”); but not where the source identifies crucial intelligence to the enemy so the rules of disclosure may have to be modifed to those of a military tribunal. Disclosure in terrorist trials has had dire consequences in the past. 3. Detention without trial should be allowed where necessary, before the actual hearing, simply because there is a war going on.

    I don’t think it is actually clear whether the thing should take place in a federal court or a tribunal – there are US constitutional arrangements to cover either and both have safeguards for fairness. However, if the three provisos above were possible (which seems impossible in a federal court), the thing should also be as transparent as possible (which would imply a federal court), secure and cheap (a federal trial in a big city would be very expensive) and independent of the political administration (which would again imply a federal court) and, lastly, able to impose capital punishment on the guilty.

    In the end, I suspect, someone has to make a practical new hybrid system for achieving these aims, some of which are possible only in a tribunal and some only in a civil court.

    • Macnvettes

      The problem comes in when we give Constitutional protections to non-citizens, especially when those non-citizens are not in the U.S. when they commit crimes against us.

      • Mrs Westrop

        This had nothing to do with Constitutional protections, but the rules of evidence. The reasons behind these rules have nothing to do with the nationality of the accused.

  • Macnvettes

    It seems that there is a movement from the far left as well as Libertarians to give our rights as Americans away to those who should not have them, namely non-citizens and people who are not in the country (Julian Assange is a great example).