The trial showed that the Guantanamo detainees charged with terrorist offenses can receive fair trials in civilian courts in New York. The jury was capable of looking at the evidence and picking which offense Ghailani was guilty of and finding him not guilty of the other offenses. The trial, unlike a military tribunal, met minimum due process requirements. The judge excluded a major witness whose testimony had been coerced by torture. In a military trial the coerced testimony would have been admissible and while not reliable would have been used. It would have raised doubts about the validity of the trial and may have resulted in further terrorist attacks against this country in response to what would have been a questionable conviction. But at the same time the judge made a number of decisions favorable to the prosecution which will probably be tested during an appeal. For example he refused to dismiss the charges even though Ghailani was tortured while in government custody. He ruled that even though the bombings occurred in 1998 and Mr. Ghailani was arrested in 2004 in Pakistan the trial met speedy trial standards.

We must remember that the test of the court system is not whether the defendant is convicted or of how many counts he/she is found guilty of but rather whether a fair trial under the Constitution is received. While the ideal is never reached the court showed that a reasonable trial could be conducted. The trial was the first and more tests will come. Certainly the appellate courts will have their say but the court certainly showed that the civilian court can do at least as good of a job as the military tribunals.

The CIA discovered Abebe through a statement given by Ghailani while being kept in a “black site” maintained by the CIA to interrogate detainees. Ghailani’s lawyers say that he was tortured into giving up Abebe’s name. While Judge Kaplan has not made a finding on whether or not torture was involved he said it was clear that Ghailani was coerced into giving up the name. United States courts have long held that evidence received by torture or coercion is inadmissible as evidence. Not only is evidence received as coerced testimony inadmissible but the fruits of such evidence is inadmissible. In other words prosecutors cannot use evidence directly related to coercion or torture. Evidence indirectly received may be admissible. For example if they received evidence of Adebe involvement from two sources, one coerced and the other not it might be admissible. But the only source in this case is the coerced testimony of Ghailani. Thus since Ghailani gave up the name of Abebe as a result of coercion, Abebe’s testimony is a fruit of the illegal interrogation and is inadmissible.

Not only is coerced testimony unreliable but the government should not be rewarded for the use of coercion or torture.

Abebe allegedly gave the dynamite to Ghailani, used in the bombing and his testimony is considered crucial to the government’s case.There is some fear that if the government is unable to convict Ghailani they will no longer use civilian trials to try those like Ghailani who are charged with terrorist crimes and housed at Guantanamo.

But Judge Kaplan said:

“But 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. To do less would diminish us and undermine the foundation upon which we stand.”

However, he also said that even if Ghailani is found innocent he may be detained for the rest of his life as an enemy combatant. But the New York Times cites Ben Wizner, a senior lawyer with the American Civil Liberties Union, as saying that the conventional wisdom about the Ghailani case was that the justice system works if he is convicted and fails if he is acquitted.

“But that’s not how we measure the effectiveness of a criminal justice system,” Mr. Wizner said. “The question is whether the government can present its case and whether the defendant can get a fair trial.”

In fact the government may get a better win if Ghailani is found not guilty and released. This would show the world, and particularly the Muslim world, that this is a country of laws and that we only punish the guilty.

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Liz Cheney’s group called Keep America Safe has gone on You Tube with a video asking the Justice Department to identify their attorneys who previously represented detainees. Cheney and her colleagues are usin McCarthy guilt by association methods to connect Justice Department lawyers with the their clients who were charged with terrorist activities. In fact many of the lawyers who have represented detainees are prominent Republicans active in party politics and who were appointees in the Bush and Reagan administrations.

But that’s what lawyers are supposed to do. Defendants have a Six Amendment right to representation regardless of their politics and regardless of the charged crime. They not only have a right to representation but they have a right to zealous representation. Bush Solicitor General Ted Olson stated that those who represent Guantanamo detainees represent the best in the American values.

What would Cheney have said about John Adams who represented British soldiers accused of killing demonstrators in the Boston Massacre or Atticus Finch who represented an African American accused of raping a white woman in Alabama during the 1930′s in Harper Lee’s novel, “To Kill a Mockingbird.”

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Jawad is the youngest detainee at Guantanamo. It is believed that he was only 12 years old when he was arrested by Afghan police and turned over to the US military.

Under Federal law the president must give Congress 14 days notice before releasing someone from Guantanamo. The judge gave the government until August 6 to give Congress notice.

The government will probably use the next three weeks to develop a case against Jawad and attempt to charge him in Federal Court. But to convict him in Federal Court they have to show that he is guilty beyond a reasonable doubt, a much stricter standard than was necessary in the habeas proceedings and if they were unable to meet the habeas standard it is doubtful that they can meet the beyond reasonable doubt standard. The problem with the government’s evidence against Jawad, who they believe threw a grenade into a vehicle carrying two US soldiers and an Afghan interpreter, is that it was obtained by torturing Jawad and it is therefore inadmissible in Federal courts.

Jawad’s former military prosecutor, Lt. Col. Darrel Vandeveld, has stated that there is ‘no credible evidence or legal basis’ to justify Jawad’s detention and prosecution, and that his release presents no risk.”

As the judge said, “Enough has been imposed on this young man,”

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At this point the order just affects writs that are being heard by Judge Reggie Walton of the District Court for the District of Columbia but it is expected that other judges will adopt the same or a similar standard.

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They represent Mohamed Binyam Mohamed who was renditioned and tortured while under the control of the CIA. Eventually he ended up at Guantanamo. He was released after he sued Jeppson Dataplan, a subsidiary of Boeing, that was involved in his extraordinary rendition. (He turned down an earlier release which came with the condition that he not talk about his imprisonment.

Smith and Ghappour have represented many prisoners housed at Guantanamo including Mohamed. They drafted a letter to Obama attempting to discover the extent of Mohamed’s torture while Mohamed was at Guantanamo. The law requires attorneys who represent clients at Guantanamo to obtain the approval of the Privilege Review Team. The Privilege Review Team is a secret body whose job is to approve communications between Guantanamo prisoners and their lawyers. Smith and Ghappour submitted their letter to the Privilege Review Team. They did not expect to have any problems since Obama, of course, has a complete security clearance. But when they got the letter back the complete body of the letter was redacted.

They sent the redacted letter, along with a cover letter to Obama. The next thing they know there is a warrant out for their arrest for violating the rules of the Privilege Review Team. They could receive six months in jail.

It seems to me at a minimum the charges against Smith And Ghappour violate Mohamed’s Sixth Amendment right to competent counsel and the rights of Smith and Ghappour under to First Amendment to freedom of speech and freedom to petition.

The case reminds me of that of Lynne Stewart, the New York lawyer who represented Omar Abdel Rahman, a blind Egyptian sheik who was convicted of conspiracy to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. She was convicted and sentenced to twenty-eight months for helping her incarcerated client convey a message to his followers. Like Smith and Ghappour her speech should be protected by the First and Sixth Amendments. It is currently up on appeal.

Both prosecutions are attempts to quiet lawyers who are raising serious issues which the government finds bothersome. The attack upon the right of counsel is an attack upon the Constitution for without the right of counsel to vigorously carry on the battle of their clients the constitutional rights are meaningless.

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