NRO Botches the Law, Again: Ghailani Decision Attributable to Torture

For the National Review, Andy McCarthy strains to avoid the conclusion that Bush-era torture and coerced interrogation resulted in Mr. Ghailani’s acquittal on all but one count:

Judge Kaplan assumed that the alien terrorist had a Fifth Amendment privilege, and the Obama administration does not seem to have contested that assumption. This led the judge to conclude that the “fruit of the poisonous tree” doctrine applied. To permit the witness’s testimony, Kaplan reasoned, would violate Ghailani’s purported Fifth Amendment rights – i.e., evidence traceable to the CIA’s interrogation would be introduced against him. But there was nothing “poisonous” about what the CIA did – they were not rogue cops kicking down an American citizen’s door without a warrant; they were gathering life-saving intelligence from a foreign enemy during wartime. And, again, a witness’s testimony is not really the “fruit” of that tree; it is related but independent in a way the substance of the confession is not.

I think the administration should have appealed and should not have conceded Ghailani full Fifth Amendment protection.

McCarthy conflates the Fourth and Fifth Amendments (and also misstates the rule on the required nexus between coercion and exclusion… but that’s another story). The “fruit of the poisonous tree” rule applies in Fourth Amendment exclusionary proceedings: but in the Ghailani case, the Fourth Amendment was at work in the background, but Fifth Amendment concerns independently supported the exclusion of key testimony. Not only was Ghailani coerced into a confession, rendering the confession both unreliable and inadmissible under the Fourth Amendment, but the Fifth Amendment separately protects against self-incrimination. From Human Rights Watch:

A controversial issue at the trial, which could be raised in the 9/11 trial, was the use of evidence obtained from the defendant while he was in CIA custody.  In pretrial proceedings in September, Judge Lewis A. Kaplan excluded testimony from a witness whose identity was obtained during Ghailani’s coercive interrogation in CIA custody. The judge ruled that its admission was barred by the Fifth Amendment to the United States Constitution, which prohibits self-incrimination. Despite the exclusion of the evidence from trial, the prosecution was able to prove its case using other witnesses and documentary evidence.

The New York Law Journal saw the full (and hitherto unpublished) exclusionary ruling, and concurs. Critically, the Fifth Amendment unmistakably applies abroad. Reid v. Covert, 354 U.S. 1 (1957). McCarthy’s insistence that the Obama Department of Justice should have appealed against settled law illustrates the general conservative disinterest in and distrust of the law as anything other than a partisan tool. But, thankfully for the rest of us, constitutional rules don’t drop just because they’re unpopular when applied to minorities.

Oh, and interlocutory appeals are tough, especially because (assuming the court could acquire appellate jurisdiction) Fourth and Fifth Amendment exclusionary decisions are fact-based; an appellate court would’ve been bound to accept the facts; and could therefore only have dispensed with the lower court’s ruling if it decided that the Fifth Amendment wasn’t a thing.

If the only way to exclude torture as a causative factor here is to suggest that Obama should’ve taken a long-shot interlocutory appeal on frozen facts against a rule of law that’s been on the books for fifty years, and tried to hoodwink the appellate court by blurring the distinction between two separate and fully developed constitutional amendments, well, no. The law doesn’t work that way. Thank God.


One comment

  1. Here’s a fun excercise for a quiet evening.

    1) Imagine some newspaper articles that contain the following phrases:

    “I think the administration should not have conceded Mr. Sorenson full Fifth Amendment protection when expropriating his farmland.”

    “I think the administration should not have conceded Mr. O’Neill full Second Amendment protection regarding his carrying of a concealed firearm.”

    “I think the administration should not have conceded the Universal Church of the Saving Christ full First Amendment protection on the free exercise of their religion.”

    2) Imagine the Right’s reaction to those articles.

    3) Compare with the above.

    4) Wonder in awe at the mental agility required to maintain such widely different interpretations of the Constitution at the same time.

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