Wednesday, June 10, 2009

Just The First Step

"Not guilty."

Two words that signal the start of a criminal proceeding, one that is constitutionally based and rooted in the concept of due process and fairness. Yesterday those two words were uttered by Ahmed Ghailani in a U.S. District Court rather than at a military commission hearing in Guantanamo Bay.

From the Washington Post:

The transfer of Ahmed Ghailani to face capital charges in the 1998 East Africa bombings marked the first time a detainee who is not an American citizen has been brought from the prison in Cuba to the United States. Ghailani, appearing briefly in U.S. District Court in Manhattan yesterday, pleaded not guilty to multiple charges in connection with the blasts at the U.S. embassies in Tanzania and Kenya. Those attacks killed 224 people, including 12 Americans. ...

A former Islamic cleric, Ghailani was captured after a 10-hour shootout in the Pakistani city of Gujrat in July 2004. He was taken to a secret CIA prison before he and 13 other "high-value" detainees -- including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks -- were transferred to Cuba.

The transfer of Mr. Ghailani to the US to face trial in a civilian courtroom is significant, if only because it sets a precedent for other Gitmo detainees to be moved from that prison camp and accorded the constitutional protections inherent in a civilian trial even though they are not US citizens. That the current administration arranged for the transfer is also significant, if only because it did so knowing it would face the righteous indignation of some of the fear mongers in Congress. On both counts, the move is a welcome one.

Yet the move will ultimately be judged by what follows Mr. Ghailani's plea. Will he be given a fair trial with all of the evidence against him laid out? Or will the government once again invoke the "state secrets" theory to hide evidence and the way in which it was gathered? If he is adjudged to be innocent, will he be released? Or will he simply be shipped back to Guantanamo Bay or to a federal prison because he is deemed "too dangerous" to be free?

One US Senator, while speaking to the issue of preventive detention, captured the issue nicely:

"Any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional," said Sen. Russell Feingold (D-Wis.), who held a hearing on the issue yesterday. "Indefinite detention without charge or trial is a hallmark of abusive systems that we have historically criticized around the world."

Holding an individual indefinitely after the trial is just as much the hallmark of an abusive system. We can only hope that doesn't happen in this or any other case.

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