One of the more amusing things about the conservative-fueled "controversy" over the Obama administration convicting embassy bomber Ahmed Ghailani is the degree to which Republicans have ignored information that supports their argument, because they're so focused on defending torture.
Conservatives have been arguing that the evidence gleaned through torture that was excluded by Judge Lewis Kaplan would have been allowed in a military commission. That's plainly not true, but again, they're focused not so much on the efficacy of military commissions, which are hard to defend on those grounds, but on justifying the national-security policies of George W. Bush. If the fact that Ghailani was convicted on a single count was the result of a compromise verdict between a single holdout juror and the rest of the jury, then yes, a military commission would have produced a different outcome. Not because coerced evidence would have been allowed but because as I noted last week, a military commission requires only two-thirds majority on the jury to convict in non-capital cases, rather than the unanimous verdict required in the civilian system.
Instead of arguing this empirically defensible point, torture defenders, like Andy McCarthy, are still preoccupied with, well, defending torture. In his many reactions, McCarthy, one of the right's preeminent "experts" on legal matters and terrorism, never mentions the lack of a unanimity standard in the military commissions. Instead, he comes to a far more odious conclusion that "in a commission, moreover, there would have been a jury of military officers" and that a mixed verdict is "far less apt to happen in a military commission, where the jurors are military officers." One thing about the implication there. It's the same one that might have led McCarthy to suggest Obama administration lawyers who defended suspected terror detainees -- the ones now defending targeted killing and indefinite detention -- were traitors, but the military lawyers who offered zealous defenses of their clients at Gitmo were not. He assumes that American service members have as little respect for the legal system as he does. In fact, American military lawyers played a key role in exposing the Bush administration's torture policies, their incompetent handling of evidence related to suspected terror detainees, and dismantling previous versions military commissions system. American service members are not mindless drones.
In his many responses to the verdict, McCarthy has, however, tried to argue that torture isn't torture because no one was ever prosecuted for it -- having successfully leveraged political pressure against the administration to prevent prosecutions, conservatives are now retroactively claiming such politicized decisions vindicate their lawbreaking. He's also vacillated between intellectual honesty and delusion, admitting that the Department of Justice was merely "unlucky" and acknowledging that Ghailani's accomplices had been convicted in civilian court a decade ago but still insisting that the evidentiary standards of civilian courts produced a mixed verdict.
But look, the point is, even with the two-thirds jury requirement, we don't know that a military commission would have produced a different outcome. It very well might have, if the issue was a single juror. So would a different civilian jury. The fact that it's easier to get a guilty verdict because the rules are tilted in the government's favor is not, in my view, a strong point in favor of the military commissions; it's a point against them. The goal of a legal system is justice, not ensuring the government wins. The fact is if Ghailani hadn't been tortured, if the government hadn't waited so long to try him, he would have been in a supermax prison along with his buddies long ago.
