Is it too much to suggest that the federal government is putting all the tools in place that could one day lead to a totalitarian regime?  Patriot Acts, Military Commissions, NSA domestic spying, state secrets privilege, national security letters, and now a bill moving through the Senate that will permit censorship of the internet.  The constitution backed up by the judiciary should be protecting us from the invasive policies of the legislature and executive but has manifestly failed to do so. 

While one does not expect much from “analysis” coming from the mainstream media, the tone of some recent press coverage has been particularly disturbing.  Driving into Washington yesterday I listened to a succession of NPR news broadcasts.  All reported Wednesday’s acquittal of Tanzanian Ahmed Ghailani on 284 of 285 counts relating to the 1998 bombing of the US Embassy in Dar es Saalam.  The coverage suggested that the trial was a failure from the point of view of the Obama Administration in that it did not obtain a complete conviction.  The Washington Post went ever further, reporting that the outcome supported the validity of “concerns that it would be harder to win convictions in civilian court.”  Proposed solutions aired by the Post include military tribunals where the rules of evidence are less stringent and also to avoid trials completely through the option “to hold others indefinitely and without trial under the laws of war.” 

Nowhere was it suggested that the acquittal just might have meant that the government case against Ghailani was not very good, at least not compelling enough to convince the six men and six women that constituted the Federal court’s jury in New York City.  Ghailani’s defense was that he was an unwitting dupe who was fooled by the conspirators into buying a truck and gas tanks that were used in the attack.  The government tried to introduce a witness who apparently had been identified by Ghailani himself while under torture by the CIA and who also might have been tortured, but the judge ruled the testimony inadmissible.  Ghailani was consequently convicted on the one charge of conspiring to destroy US government property.  The presiding Judge Lewis Kaplan hailed the ruling, noting “…the constitution is the rock upon which our nation rests.  We must follow it not only when it is convenient, but when fear and danger beckon in a different direction.”  But he also supported the government’s “right” to hold Ghailani indefinitely as an enemy combatant during an ongoing war.

Now for all we know Ghailani might be guilty, but the government was unable to make the case.  The presumption by our political class that the threat of terrorism means that you need to create separate legal systems designed to convict rather than to protect constitutional rights is about as wrongheaded as can be and it is astonishing that many Americans are supporting such a disturbing concept. The right to defend oneself before a jury composed of peers is fundamental to maintain our remaining liberties.  Ghailani has been held for six years at CIA prisons and at Guantanamo and will be spending 20 more years in jail, so he is hardly an imminent danger to society, but the argument that someone is a terrorist just because a CIA interrogator thinks that to be the case must be tested in our courts lest all of us someday wind up being judged as terrorists every time we oppose what the government is doing.