Ahmed Ghailani, a Tanzanian, is charged with involvement in the 1998 U.S. embassy bombings in Africa.
Lewis Kaplan is a District Judge for the Southern District of New York, and is handling the Ghailani case. Kaplan was nominated by President Bill Clinton.
Kaplan has issued a ruling on the relation of torture and due process. Essentially, there is none here, not in a way that would make a difference.
Any deprivation of liberty that Ghailani might suffer as a result of a conviction in this case would be entirely unconnected to the alleged due process violation. Even if Ghailani was mistreated while in CIA custody and even if that mistreatment violated the Due Process Clause, there would be no connection between such mistreatment and this prosecution.
(p. 7)
Kaplan has apparently not yet ruled on Ghailani’s speedy-trial motion. The government has argued that Ghailani, held since 2004, didn't bother asking for a trial. Also, that they were gathering high-value intelligence from Ghailani during interrogations, and that the need for intelligence (across 6 years) is "weightier, more significant" than Amendment 6.
Putting intelligence interrogation needs over legal process and constitutional protection is a repeated theme in current government arguments. You can see it, on a much shorter timeframe, in the current Miranda rights battle.
The due process ruling has not got quite so much Kafka as "he didn't ask to be tried."
Evidence obtained under torture, and fruit of the poison torture tree, would not be needed against Ghailani because they got other evidence they wouldn't have come across, oh, somehow.
The judge needed to distinguish from a United States v. Toscanino case, but not in a way that is through the looking glass, since in that case, it seems, all the evidence was derived from abuse.
Ghailani being before a civilian court demonstrates Barack Obama's guidelines for choice of civilian court, military commission, or indefinite detention.
As crucial point here,
If the government is correct in contending that Ghailani would not be entitled to dismissal of this criminal prosecution on due process grounds even if he was tortured in violation of his constitutional rights, it would be unnecessary for this Court to address the details of Ghailani’s alleged treatment while in CIA custody.
(p. 5)
it has been found unnecessary, they have avoided, putting details of Ghailani's treatment into the record.
Ghailani's approved treatment, as a good guess about an OLC to CIA letter, included this:
- Attention grasp
- Walling
- Facial hold
- Facial slap (insult slap)
- Cramped confinement
- Wall standing
- Stress positions
- Sleep deprivation
- Dietary manipulation
- Nudity
- Water dousing
- Abdominal slap
The cramped confinement box is, for the ICRC fourteen, only discussed as used on Abu Zubaydah.
Walling, collaring them with say a towel, and slamming them into a wall, a beating without punches or kicks, was used on six of the fourteen. I'd guess that the explicitly violent quality of this technique makes them especially reluctant to discuss it in a trial.
Note that Abu Zubaydah's treatment, during the "especially intense" period, was just relentless. He was walled against concrete, them put into the box, then walled against plywood over concrete, then waterboarded, then put into the box, ....
Ghailani was captured in Pakistan. As pure speculation, his Black Site imprisonment may thus have included the Dark Prison in Afghanistan. An especially nightmarish place, with cages in a dim dungeon, and halloween music, where men groped for their latrine bucket in the dark, and occasionally dared call out their names to each other when guards were not around to punish them.
Ghailani fingered Mohammad Saleh al Hanashi, who, in the very last days of the George Bush presidency, died at Guantanamo of "suicide". Al Hanashi's suicide similar to the 2006 "suicides" of the Camp No three.
The government says that the hyoid bone for one of the three, what gets broken by strangulation, was actually accidentally broken during autopsy.
Hyoid bones had an amazing ability to go missing during investigations of war-on-terror prisoner deaths. It is nearly unbelievable, or an outrage anyways, that repeated evidence of coverup and conspiracy, at such a gross and laughable level, is so accepted of the government of the United States.
Barack Obama has the "looking forward" policy on previous torture. A judge has ruled that the previous torture of Ahmed Ghailani, uncontested but unadmitted that it occurred, is no bar to his prosecution.
The remedy is prosecution of the torturers:
dismissal of the indictment would not be a proper remedy for the government’s alleged misconduct
(p. 4)
Rather, the proper remedy is money damages or criminal prosecution of the offending officers.
(p. 7)
Any remedy for any such violation must be found outside the confines of this criminal case.
(p. 8)
"[t]he remedy of dismissal is not required to vindicate [petitioner’s] due process rights. Other and more appropriate remedies are available," potentially including civil remedies under 42 U.S.C. § 1983 and criminal prosecution of the police who assaulted him.
(p. 10)
The proper remedy for the torture of Ahmed Ghailani, according to Judge Kaplan, is prosecution of those who did it.
Under the policies of Barack Obama, this will not be happening. There will be no prosecution of those who did it. The "proper" thing will not be happening. Leaving us with the question:
Despite the legal arguments in this ruling, can there really be any such thing as due process here?