Ghailani and the Torture Trail

October 9, 2010

Daniel P. Moynihan U.S. Courthouse (c) Spencer Platt/Getty Images

There is something stately about the Daniel P. Moynihan courthouse in lower Manhattan, it rests between the bustle of Chinatown and the Brooklyn bridge.  Early Tuesday morning, commuters and traffic whirled by as usual, not noticing the few camera crews that had bothered to show up.  A terrorist trial was supposed to bring the city to its knees, but in the early morning the only flurry to be seen were the graceful movements of a group of elderly Chinese ladies doing Tai Chi in the park across the road.

The wheels of justice turn slowly but inexorably in one of the most fascinating cases to see the inside of a US courtroom in recent years.  Ahmed Ghailani is on trial for his role in the 1998 US Embassy bombings in Kenya and Tanzania.  The heinous murder of 224 people, mainly Africans, whose only crime was to turn up for work as usual on August 7, 1998.  They included Rosie Mwangi, who tried to comfort another victim for two days even as she lay dying trapped in the rubble of the secretarial school where she worked next door to the embassy in Nairobi.

It was a wicked and cowardly act, so shameful that Al Qaeda tried to justify it later by saying the genocide in Rwanda was planned inside the embassies, to mask their complicity.  Twelve years later the victims of the bombing may finally get to see justice in a US Court.  Three others have been successfully convicted and are safely imprisoned in Florence, Colorado, no more a threat to society than Charles Manson or the Unabomber.

But for any observer there is also an unsettling Kafkaresque subtext to this trial.  Post 911, Ghailani was caught in Pakistan in 2004 and then he was placed in what the CIA euphemistically called the “High Value Detainee Program”. According to the court he was tortured in custody, the fruits of which have already infected the trial, and the testimony of a key witness – Hussein Abebe – has been thrown out.

But in justifying his decision to exclude the tainted evidence, Judge Kaplan said Ghailani’s status as an “‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States an Al Qaeda and the Taliban end, even if he were found not guilty in this case.”

To be clear, if Ghailani is found guilty he will go to jail, and if he is found by some legal quirk to be not guilty .. well …he will go to jail.  While this may reassure a few, it should concern us all,  the point of a trial ought to be to determine the facts and pronounce a sentence, or in this case vice versa.

When a society seeks to deprive someone of their liberty through a legal process, it is a reflection not only on their actions but our own laws and values. In weighing Ghailani on the scales of justice it is clear that there is more that hangs in the balance than just his fate.  But it is not clear what, if any, message we send to the world when in the name of combating terror we come close to cutting at the core of our own values.

In an age when an enemy deliberately and coldly picks at a defenseless target like Rosie Mwangi, it is easy to feed the climate of fear.  In an earlier time against a different enemy, Edward R. Murrow once said , “We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.”