November 22, 2010 4:00 pm ET - by Alan Pyke
In an interview with Newsmax published yesterday, former House Speaker Newt Gingrich claimed that the verdict in the civilian trial of embassy bomber Ahmed Ghailani — which will put Ghailani in jail for 20 years to life — is a miscarriage of justice and proves "Attorney General Holder should resign." Never shy of an absurd attack line, Gingrich claimed that "the American people should rightly feel that they are more endangered as long as Holder is the Attorney General."
GINGRICH: It's clear to me that Attorney General Holder should resign. That his rulings have been wrong. That they've endangered national security. They allowed a federal judge to throw out most of the evidence. Uh, it's fundamentally wrong to go into a civil court in this kind of a— basically, this is a fight over a war. And you can't bring into this kind of trial the kind of evidence that a military tribunal would have, uh, and the federal judge was wrong, and the Attorney General was wrong to take it there. So I think the Attorney General Holder should resign, and I think the American people should rightly feel that they are more endangered as long as Holder is the Attorney General.
Forget for a moment that Gingrich took exactly the opposite view in 2005, when he liked the guys in the Oval Office (and wasn't weighing a run for president). Forget that the Bush administration's use of illegal torture saved Ghailani from more convictions. Notice instead that Newt's rabble-rousing doesn't include a shred of evidence to support his claim that a military tribunal would have admitted the ill-got evidence thrown out in the civilian Ghailani trial. He is by no means an expert on our legal system, our national defense, or the contrasts between military and civilian trials for detainees.
Here's what one such expert — Col. Morris Davis (Ret.), formerly the chief military prosecutor from the Gitmo tribunals — has to say about Gingrich's unsubstantiated faith that a military judge would be a-okay with torture:
True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the C.I.A. The prosecution did not contest his claim, arguing instead that the identification of this "giant witness for the government" was only remotely linked to Mr. Ghailani's interrogation.[...]
Representative Peter King, a New York Republican, insists that Judge Kaplan "doomed" the case. Yet a look at the record shows that Judge Kaplan's assessment of what a military commission judge might have decided was well founded.
Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.
We don't know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.
Gingrich is not merely ignoring the record (his own, as well as judicial precedents and the history of stronger sentences from civilian courts than from tribunals). He's also ignoring the official Manual for Military Commissions, Rule 304 of which rules inadmissible any evidence gained through torture.
Of course, without making headlines for dishonest jabs at Democrats, Newt Gingrich's voracious ego would have to look elsewhere for sustenance (and Republicans who actually hold office have raised the bar for foolishness in the wake of the Ghailani verdict). Liberal consultant Kombiz Lavasany offered the obvious, appropriate reaction to Gingrich's baseless posturing on Twitter this morning:
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