[inteldump] Phillip Carter: So much for that Art. I clause . . .

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Posted by Phillip Carter:
So much for that Art. I clause . . .
http://inteldump.powerblogs.com/posts/1207058142.shtml


   Today's Washington Post [1]reports that the Bush administration has
   decided to charge Ahmed Khalfan Ghailani with before a military
   commission at Guantanamo Bay for acts committed before Sept. 11 -- to
   wit, his alleged participation in the bombing of the U.S. Embassy in
   Tanzania.  According to the [2]Defense Department, Ghailani will be
   charged with conspiracy, murder, attacking civilians, destruction of
   property in violation of the Law of War, terrorism, and material
   support to terrorism, among other charges.  The Post reports:

     Ahmed Khalfan Ghailani, who was held in secret [3]CIA custody for
     more than two years before arriving at Guantanamo Bay in late 2006,
     was accused of plotting and carrying out the embassy bombing as
     part of his work for al-Qaeda and [4]Osama bin Laden. The attack,
     on Aug. 7, 1998, killed at least 11 people and injured nearly 100
     more.
     Ghailani was also accused of later going to al-Qaeda training camps
     in [5]Afghanistan, working as a bodyguard for bin Laden and forging
     documents for other terrorist conspiracies. At one time, he was on
     the [6]FBI's 25 Most Wanted list and had a $5 million bounty on his
     head. He was arrested in a raid on his home in [7]Pakistan in July
     2004.
     Almost all of his alleged "war crimes" occurred before the Sept. 11
     attacks, and most predated the nation's fight against terrorism.
     Four co-conspirators in the [8]Tanzania bombing were convicted in
     U.S. federal courts. Ghailani, too, was indicted in the United
     States, but federal authorities have opted to try him before the
     commission, composed entirely of military officers.

   I'll be very interested to see how the Bush administration's lawyers
   argue their way around the provision of [9]Article I that reads "No
   Bill of Attainder or ex post facto Law shall be passed".  Setting
   aside the myriad [10]objections to the military commissions generally,
   and this case specifically, I think this is going to present a major
   hurdle for the government.
   I'm also concerned about the deliberate decision to take this case
   away from federal prosecutors (who have already scored four
   convictions -- that's four more than Team Gitmo, in case you've lost
   count) in favor of the military tribunals at Guantanamo Bay.  In my
   opinion, our default choice for the prosecution of suspected
   terrorists should be federal court.  The Moussaoui [11]prosecution was
   an anomaly; many, many terrorism prosecutions have gone forward
   through trial and convictions, including United States vs. Bin Laden
   (in absentia).  The substantive and procedural due process granted by
   federal courts has strategic value -- it confers legitimacy on the
   outcome.  That legitimacy matters for the struggle against terrorism,
   and I think it's crucial that evaluate our prosecutorial decisions
   with that strategic calculus in mind.
   ([12]Cross-posted at Convictions)

References

   1. http://www.washingtonpost.com/wp-dyn/content/article/2008/03/31/AR2008033100899.html
   2. http://www.defenselink.mil/releases/release.aspx?releaseid=11795
   3. http://www.washingtonpost.com/ac2/related/topic/Central+Intelligence+Agency?tid=informline
   4. http://www.washingtonpost.com/ac2/related/topic/Osama+bin+Laden?tid=informline
   5. http://www.washingtonpost.com/ac2/related/topic/Afghanistan?tid=informline
   6. http://www.washingtonpost.com/ac2/related/topic/Federal+Bureau+of+Investigation?tid=informline
   7. http://www.washingtonpost.com/ac2/related/topic/Pakistan?tid=informline
   8. http://www.washingtonpost.com/ac2/related/topic/Tanzania?tid=informline
   9. http://caselaw.lp.findlaw.com/data/constitution/article01/
  10. http://www.hamdanvrumsfeld.com/
  11. http://www.vaed.uscourts.gov/notablecases/moussaoui/
  12. http://www.slate.com/convictions