January 11, 2010
A federal judge in Manhattan was asked on Monday to dismiss an indictment against a terror suspect whose lawyer argued that his nearly five-year detention in secret C.I.A. prisons and later at Guantánamo Bay, Cuba, was “perhaps the most egregious violation in the history of speedy-trial jurisprudence.”
The judge, Lewis A. Kaplan of United States District Court, listened as a lawyer for the suspect, Ahmed Khalfan Ghailani, indicated that he was not challenging the government’s authority to decide to detain his client or the wisdom of that decision. The government held Mr. Ghailani to try to obtain intelligence about Al Qaeda.
But the government “cannot have it both ways,” said the lawyer, Peter E. Quijano.
Once these decisions are made, he added, “they can’t just simply change their mind, their political mind, 57 months later, and say, ‘You know, that indictment before Judge Kaplan? Let’s try it now.’ ”
As reprehensible as it is, the man has a point, which is why it is ever so important to be clear on this: are we fighting a war, or are we fighting crime?
The implications could not be greater?
Soldiers and Marines on the battlefield already have enough to be occupied with dealing with an extremely complicated R.O.E., or Rules of Engagement, which dictate how and when they apply escalating force. Now, they’ve got to ponder, ‘do I need to Mirandize this guy?’
Case in point, Umar Faruk Abdulmutallab, the Christmas day underwear bomber. Abdulmutallab was talking immediately after being detained, saying that there were more like him coming, then he put into the U.S. legal system, where he was given a lawyer and immediately shut up. He has now pleaded not guilty and is being referred to as the alleged Christmas day bomber now. Word on who and when these other bombers were is not immediately known. Surprise, surprise…
Ghailani’s motion to dismiss is clearly a test case for the rest of the former GITMO detainees who have now been granted OUR Constitutional rights. Prisoners of War have always been treated differently, for a reason. We don’t even have a consistent application of standards to who inside GITMO gets a federal trial versus a military trial.
And frankly, Quijano has a point. These guys were detained under the premise that they were enemy combatants- not legal defendents- and the applicable for each are very different. His point that you cannot change horses midstream holds water. THe combatent or defendent, or whatever the hell you want to call him, should have an expectation to one or the other. Not both, or neither.
This is but yet another element of truth that shows how naieve the Administration is in making this policy decision.