We Convicted a Guy the Bush Administration Tortured

More like this please:

“So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and — despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one — not one — security problem associated with the trial.”

“Would it have been better optically if he had been convicted of more counts? Sure. Would it have made any practical difference? No.”

If every time the fearmongers rolled out their dog and pony show, the Obama Administration would go on the attack and focus on how stupid and inhumane Bush Administration policy was, then maybe it would open up enough space to actually move beyond those stupid policies.

Of course, the whole thing would be a lot more effective if this anonymous Senior Administration Official had the courage to say all this on the record, under his own name. But–assuming this is one of the people close to DOJ who, if they acknowledged that Ghailani was tortured, would be obliged to prosecute the torturers–that would also mean the Obama Admin would start prosecuting the Bushies for their inhumane treatment. I’m all in favor of that, but that would entail looking backward, and we know that’s not going to happen.

Which is probably why this is will be the last powerful response we hear like this.

  1. MadDog says:

    Charlie Savage’s piece this AM in the NYT makes a point that I too was wondering about last night:

    …The jury did not explain its verdict, which seemed contradictory: it convicted Mr. Ghailani of conspiring to blow up the buildings, but acquitted him of conspiring to murder the people inside the buildings. Some legal observers speculated that it might have been a brokered deal among the jury, after signs this week that one of the 12 members had been holding out for a different result than the other 11…

    I wonder if the deal went something like this: A lone holdout who wanted to vote entirely Not Guilty, and 11 folks who insisted that they had to find Ghailani Guilty of something, so let’s all vote Guilty on the least of the charges.

    • emptywheel says:

      I’d say that’s it at a minimum–they were able to get that one juror to agree that Ghailani did take actions that led directly to the bombing of the embassies.

      But it also may reflect that the prosecutors didn’t do enough to prove motive. That is, do you have evidence that Ghailani’s goal was to hurt a symbol of America–the Embassy building itself–or that he wanted to kill the bunch of civilians inside? It seems likely that one juror believed they hadn’t proven the latter.

      • MadDog says:

        I totally agree on the prosecution’s failure on the motive issue.

        Without Ghailani’s own tortured admissions, and without Hussein Abebe’s own encumbered testimony, the prosecution was in a number of ways making a case of imagination. That’s unlikely to be any prosecutor’s case of choice.

        And as to the holdout deal, it may have even been the other way around (11 Not Guilty to 1 Guilty), though I still find the opposite more likely.

  2. tjbs says:

    He got a much better deal from “enhanced questioning”than the 108 murdered suspects did.

    On that 9-11 date we rejected the rule of law, like a light switch thrown off and we will remain in the dark until the TortureMurderTreason trials take place. Obama has chosen which side of the law he’s on.

    Where in the constitutional contract, we have with the president, does it require only forward looking where corrective action can only be undertaken by studying and correcting the past through trials.

    As of now the president still rejects the rule of law, to protect certain men who he upholds as above the law.

  3. MadDog says:

    …Of course, the whole thing would be a lot more effective if this anonymous Senior Administration Official had the courage to say all this on the record, under his own name…

    Now with Rahm gone, this rather blunt and impolitic statement sounds a lot like something VP Biden would say and how he’d say it.

    • BoxTurtle says:

      It sounded like Biden to me as well. No DOJ lawyer would be that blunt, even unattributed. If it wasn’t Biden, than somebody is likely in trouble. While I’m sure the person was cleared to comment, I doubt they were cleared to say that much.

      Boxturtle (Unh, dude, we’re supposed to be looking forward here. Do we need to have a beer on the lawn?)

  4. BoxTurtle says:

    It’s kinda inmpressive that we got a conviction at all. Though what impresses me is it sounds like the only reason there weren’t more convictions was one juror.

    It is thoroughly annoying that because ObamaLLP didn’t get everything they wanted that they’re not going to “risk” any more trials.

    would be obliged to prosecute the torturers

    They are already obligated to do so. They are ignoring that obligation and frankly don’t care about any legal consequences…because there won’t be any. You think congress is going to impeach over the violated rights of a few hundred Scary Brown Moslems? Neither do they….

    We should be supporting the DOJ on this trial. It really is a win for the rule of law.

    Boxturtle (Though admittedly, it seems to have been a close call)

  5. harpie says:

    Senior Administration Official:

    “Would it have been better optically if he had been convicted of more counts? Sure.”

    How would that be “better”, “opticaly” or otherwise, if Justice is not served by it?

    Glenn Greenwald writes about it here:

    [He links to one of your October posts about it, Marcy.]

  6. b2020 says:

    More like this please?

    “So, we tried a guy we tortured and then held at GTMO for 4-plus years…”

    What exactly is the moral – if not legal – consensus on victims of government abuse? Which wrong is the greater, more relevant, more threatening to society? Which evil should be deterred by making the consequences drastic and obvious?

    Should it be possible at all to prosecute, convict and imprison victims of torture – whether or not they are terrorists? Because, at the end of the day, so-called civilization had a consensus that the pirate and the slaver were beyond the boundaries of mankind – and, courtesy of the US 2nd Circuit Court as of 1980, so is the torturer.

    The terrorist, alas, is not.

    Hostis humani generis. I for one cannot join the celebrations that the US has, years and years after abandoning in principles once more, and more blatantly then ever in its history, found some legal way of achieving what was always the foregone conclusion. It is better to let a hundred terrorists go free, then just one torturer. Without torture prosecutions – esp. on about a hundred cases of suspected homicide – the People have no legal standing to judge anybody – not even murderers. You have no law. How could you possibly have a trial?

    • klynn says:

      Your comment would make an important diary. Think about posting your comment as a diary.

      Thanks for commenting. Very thought provoking and focused.

    • Night Owl says:


      I’m all for looking for signs of incremental progress that the United States is finally returning to the company of civilized nations that respect Due Process and the Rule of Law, but any effort to legitimize a prosecution tainted by torture is a sign pointing in the wrong direction.

    • Jeff Kaye says:

      I certainly agree that torture destroys the basis for judicial authority.

      Accountability is not impossible. Other nations have been moving forward.

      Nearly 27 years after Argentina’s return to democratic rule, the country is revisiting its painful past with human rights trials. Many have called 2010 the year of the human rights trials. More than eight high-profile trials are underway, prosecuting dozens of military, police and civilians accused of torture, murder, kidnapping and disappearances. The recent release of classified military files may also lead to more prosecutions and answers as to what happened to Argentina’s 30,000 disappeared.

      Until 2003, amnesty laws foreclosed any successful prosecution of ex-military leaders for human rights crimes by the courts. Even when prosecution was impossible, human rights groups continued to gather information as to the whereabouts of the disappeared, collect evidence and testimonies, and to demand justice and an end to impunity. However, a 2003 Supreme Court order overruled the Due Obedience and Full Stop laws passed in the early 1990’s which protected officers from the possibility of facing charges.

      But the process still isn’t easy or sure.

      During this year’s massive march for the commemoration of Argentina’s 30,000 disappeared, protestors and human rights groups expressed immediate concerns about delays in legal proceedings and resistant judges contributing to delays in the human rights trials. “Only a few who formed part of this genocide are being tried in the justice system. There are still a lot left to be charged,” said Estela Carlotta, president of Grandmothers of Plaza de Mayo, reading from a document written by human rights groups on March 24. Organizers from this year’s march demanded, “the political decision to give more resources to the Justice system, in larger court rooms and truly public trials. Society has already condemned the murders and we won’t allow for forgiveness, amnesty or reconciliation for those responsible.”

      • harpie says:


        Hi Jeff. I recently saw this linked on a Greenwald thread:

        UN expert urges full U.S. torture investigation; 11/16/10


        […] “VICTIM-CENTERED”

        Mendez, 65, is a lawyer who survived torture while jailed by Argentina’s military dictatorship in the mid-1970s for denouncing torture and defending opponents of the regime, before being expelled from his homeland.

        He recalled his arrest on the street and being tortured with electric prods and beatings, a treatment also suffered by lawyers defending political opponents of President Isabel Peron.

        “It was very intense, they gave me five sessions with cattle prods in less than 24 hours,” said Mendez. “They kept me in incommunicado detention about a week so the signs on my body would disappear.”

        Mendez said the needs of victims would be at the heart of his three-year mandate, reporting to the U.N. Human Rights Council. […]

        I was trying to put a comment together about the fact that the US supported the government in Argentina’s “Dirty War” [and Condor] during the period of time when Mendez was tortured.

        I’m not too knowledgable about it, and kept thinking that you would do a better job of it. I would have linked to your post of 4/11/10:

        Declassified Document: Kissinger Blocked U.S. Protest on South American Assassinations.

        It seems to me we have a similar role in Yemen, now, including major military aid to Saudi Arabia [some people say to provoke a proxy war in Yemen with Iran], support of the Yemeni dictator, despite human rights abuses, and JSOC troops on the ground in actions and training.


        U.S. Pursues Wider Role in Yemen; Americans Move to Bring In Equipment and Operatives and Propose New Bases for Fight Against al Qaeda Affiliate; WSJ; 11/16/10


        I’m still working on it, but thought you might be interested in case you hadn’t heard or read that part about Mendez.

  7. Phoenix Woman says:

    Did you hear Dina Temple-Raston’s fearmongering bullshit about this on Nice Polite Republicans this morning? She conflated the jury’s recognition of gross prosecutorial overreach with OMG WE’RE ALL GOING TO DIIIIIIEEEEEE!

  8. eCAHNomics says:

    If it were a one-juror holdout, good on him/her. A kindred spirit. I once single-handedly hung a jury on a murder trial. It ain’t easy, even if you’re as bloody minded as me, and terrism has to be a lot more emotionally laden than the murder of a single individual.

  9. Scarecrow says:

    Not sure whether it matters that the DOJ official was anonymous. Tapper’s report quotes a DOJ official as saying the Bush Administration tortured someone. The DoJ’s obligation to follow up with a criminal prosecution is there whether the official has a name or doesn’t. Surely an investigation can figure out who the official was, so that’s not the issue.

      • oldgold says:

        Yes and I am not sure I understand the parenthesis around the torture portion of the quote. Generally it is used to interject explanatory material and is not part of the actual quote. So, it may not have been what the SAO actually said.

  10. alan1tx says:

    1-280 isn’t exactly something you go around bragging about.

    I wonder what the outcome would have been if he was tried in a military tribunal?

  11. alan1tx says:

    Even if they hadn’t got the single conviction, the Obama administration had made clear that it would simply continue to imprison him anyway.

  12. nonpartisanliberal says:

    Obama’s goal is to firmly establish the principle that the executive branch is above the law. He’s as guilty as Bush and Cheney.

  13. JohnLopresti says:

    One of the subliminal scripts in the SAO remark, is the effort to deflect any precedent setting retributive interplay between successive administrations. The sum of the morality of the Republicans and Democrats, in that respect, remains a sort of conscience quotient. In obverse, I see the memoir circuit remarks and prescinding from uttering any specific comment on the issue clearly stated in document 1040 p1(pdf-p.4) fn.1* (October 13 2010, order and opinion, Kaplan) by the former president as rappelling along the same unspoken political asymptote.


    *loc cit.:

    See Suppression Hearing Transcript (**Tr.**) at 369 (Court asked, **[Y]ou are asking me to assume for the purposes of deciding the motion that everything Ghailani said from the minute he arrives in CIA custody till (sic) the minute he gets to Guantanamo at least is coerced. Am I correct?** The Assistant United States Attorney answered, **Yes, Judge, yes.**); Gov*t Resp. to OmnibusMot. [DI 927], at 11 (not contesting or conceding the involuntariness of defendant*s statements to the CIA and arguing that **[e]ven assuming arguendo the truth of the defendant*s premise–namely, that use of the Custodial Statements would be prohibited under the Firth and Sixth Amendments–there is no merit to his *fruits*argument**). In view of the disposition of the Fifth Amendment argument, there is no need to deal with that based on the Sixth Amendment.

  14. tjbs says:

    On the DU, the London mayor’s comment on gwb TortureMurderTreason book tour,

    It is not yet clear whether George W Bush is planning to cross the Atlantic to flog us his memoirs, but if I were his PR people I would urge caution. As book tours go, this one would be an absolute corker. It is not just that every European capital would be brought to a standstill, as book-signings turned into anti-war riots. The real trouble — from the Bush point of view — is that he might never see Texas again.

  15. lysias says:

    Bush was proud of not having travelled before he became President.

    So why should he mind not being able to travel now?