Guest post by Randall Ryder
The pending trial of Ahmed Ghailani may offer a preview of how a trial for the 9/11 conspirators will work in the Southern District of New York.
Ahmed Ghailani was transferred from Guantanamo Bay to the Metropolitan Correctional Center in New York to stand trial for allegedly playing a part in the 1998 embassy attacks in East Africa. One reason the Southern District has been chosen to handle the cases is prior experience with terrorism cases. This is the same court that handled the 1993 World Trade Center case and has been targeted to handle the cases of the 9/11 conspirators.
But this case presents two new issues: (1) allegations of torture and (2) a return address of Guantanamo Bay. Under the glare of the United States Constitution and the Federal Rules of Evidence, the case could be dismissed solely on grounds of torture. Even if the case was not thrown out, the Federal Rules of Evidence would severely limit and likely altogether prohibit the introduction of any evidence procured by torture. A future trial with the 9/11 conspirators will face the same issues.
Returning the detainees to Guantanamo to serve out their sentences is tied into the first problem. At Guantanamo Bay, the detainees are theoretically not provided Constitutional rights – enemy combatants who are not on US soil. But once brought into Federal Court, they have Constitutional rights and Constitutional protections. If the detainees will be tried in a system based on the Constitution, why not have them serve the sentences (assuming the death penalty is not sought) in a Federal penitentiary? Obviously there are security risks, among other complications.
There is little doubt that the previous version of the military commission under President Bush was not a fair system. Trying the detainees in Federal Court brings more gravity and legitimacy to their cases. But given how the detainees were allegedly treated prior at Guantanamo, and given that large amounts of evidence were procured by torture, will the trials result in justice? It remains to be seen.