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Does Incoming House Judiciary Chairman Believe In Admitting Torture-Tainted Evidence?

By Guest Contributor on December 29, 2010 at 12:00 pm

"Does Incoming House Judiciary Chairman Believe In Admitting Torture-Tainted Evidence?"

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Our guest blogger is Elon Green, a freelance writer living in Brooklyn.

lamarDuring George W. Bush’s presidency, it was not uncommon for terrorism suspects to be tried, convicted and receive lengthy sentences in American courts. These numbers include Mohammed Jabarah, Richard Reid, the “shoe bomber,” Bryant Neal Vinas, Mohammed Junaid Babar and Shahawar Matin Siraj — all of whom will be imprisoned for decades.

It is therefore disappointing to see Rep. Lamar Smith, the incumbent chairman of the House Judiciary Committee, act as if trying terrorism cases on American soil is an idea devised by the Obama Administration. In an interview with Hugh Hewitt, Smith suggests the conviction of Ahmed Ghailani is an unfortunate precedent and a reason to favor military tribunals over the courts:

HH: In terms of other oversight issues, Congressman Smith, with the border, with Gitmo not closing, and that fiasco we had in New York City, do you think your committee will be looking at stopping additional trials of terror suspects in the United States?

LS: Well, as you say, they tried a terrorist in New York City. That was supposed to be their best case, they had their best witnesses. That was the one that they were going to use as an example and say you know, here, yes we can conduct a trial of a terrorist in the United States. And even if they get some rights as citizens, we’re still going to be able to find them guilty on all counts. Well as you know, this individual was found guilty on one count of, I think, 254. And even though he was found guilty of building the explosives, he wasn’t found guilty of killing, I think, 254 innocent people who were killed, among them several dozen Americans. So in that situation, it clearly did not work as the administration had planned, and it kind of blew up in their face, and the judge didn’t allow some of the evidence and some of the testimony that would have been allowed if this individual had been tried at Guantanamo Bay detention center in Cuba, the so-called Gitmo.

It’s certainly true that Judge Lewis Kaplan excluded evidence and testimony. Unmentioned by Rep. Smith — rather conveniently — is Judge Kaplan’s reason for doing so: the evidence was obtained after Ghailani was allegedly tortured, rendering it fruit of the poisonous tree.

Furthermore, the notion that the excluded evidence would have been admissible in a military tribunal setting is misguided. Experts across the political spectrum, including former Bush assistant attorney general Jack Goldsmith, disagree.

Rep. Smith displays a similar lack of awareness of current court cases. In addition to the convictions listed above, New York has been awash in terrorism cases for some time. As the Daily News noted nearly a year ago:

Pending right now in the Southern District of New York is a list of terrorism cases from around the world: Afghanistan, Pakistan, Colombia, North Africa.

In fact, a week ago, Manhattan’s 2nd Circuit upheld the conviction of Hassan Abu-Jihaad, “a former member of the U.S. Navy of leaking classified ship movements to a jihadist organization.”

The Ghailani case was not “an example” for future terrorism trials; it was simply one of many.

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