The Good News: Ghailani Trial is On. The Bad News…

Even if he’s acquitted, says judge, we might keep him locked up for life.

Flickr/<a href="http://www.flickr.com/photos/funky64/4350468205/">Funky64</a> (<a href="http://www.creativecommons.org">Creative Commons</a>).

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Read Karen Greenberg’s previous coverage of the Ghailani trial here and here.

Last week, civil libertarians drew a sigh of relief when New York federal court judge Lewis Kaplan ruled that the government could not use its prime witness in the case of Gitmo detainee Ahmed Kalfan Ghailani because that witness had only been found through Ghailani’s torture. It will be a while before we learn the exact reasoning of Judge Kaplan, whose final decision is being reviewed by government security experts before publications. (I’ll file an update once I read the redacted opinion). But whatever the fine points of Kaplan’s legal reasoning, it was a landmark decision—and perhaps just as important was the fact that the government chose not to apeal.

But even as we embrace this movement forward in the case—the trial began Tuesday—there is reason for concern. In his brief decision, Kaplan took away even as he gave. On the heels of banning the torture-tainted testimony, he appeared to endorse the notion of indefinite detention:

“It is appropriate to emphasize that [Ghailani’s] status as an ‘enemy combatant’ probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and al Qaeda and the Taliban end even if he were found not guilty in this case.”

Why did Kaplan raise indefinite detention—which the Obama administration insists is a real a possibility for alleged terrorists—in his memorandum? Was he trying to show that he is on board with popular sentiments about national security? Or was he trying to give some reassurance to the prosecution (as my colleague Joshua Dratel suggests) so that they would continue with the trial and refrain from filing an appeal?

In his last conversation in court with the prosecution about the witness, Kaplan asked the government what was so vitally important about this witness. And the prosecution answered that without the witness, they could not connect Ghailani, an alleged Al Qaeda member implicated in the 1998 Embassy bombings in Tanzania and Kenya, to the explosives used in the attacks. Perhaps Judge Kaplan registered their concern—the government’s case will be less strong, it appears. Nevertheless, the judge has been determined for months now to have the trial begin on time, as scheduled, this week.

Raising the possibility of indefinite detention even after an acquittal breaks novel legal ground—and it is cause for great concern. But there are two things to keep in mind. First, the trial is going to take place. In a world where even the basics of due process must not be taken for granted, I guess we should be grateful for that—and for the fact that torture-obtained evidence will, at least according to this precedent, not be allowed in our courts. As for preventive detention (a concept that seems to defy the same rule of law that finally got Ghailani into this courtroom) we’ll have to wait to have that discussion until the decision is upon us.

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Truth #1: The chaos is the point.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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