ASC Blog
April 2, 2008

The Pentagon lodged a capital murder charge against an alleged al-Qaeda operative for actions committed before the Sept. 11 terrorist attacks, The Washington Post reported.

The alleged al-Qaeda member, Ahmed Khalfan Ghailani, was held secretly by the CIA before being sent to Guantanamo Bay in 2006. Pentagon prosecutors are seeking the death penalty against Ghailani before a military commission tribunal at Guantanamo Bay for, among other things, his alleged involvement in the 1998 bombing of the U.S. embassy in Tanzania, where at least 11 people were killed and nearly 100 injured.

The Post reported that the Pentagon’s push for the death penalty must be approved by the Bush administration.

In hearings held at Guantanamo Bay, Ghailani asserted he was not “consciously” involved in plotting the embassy bombing. He has, the newspaper reports, acknowledged working for al-Qaeda.

Phillip Carter, an attorney with McKenna Long & Aldridge who has a national security practice, wondered in Slate how the Bush administration would work around the U.S. Constitution’s Article I provision that “No Bill of Attainder or ex post facto Law shall be passed.” James Madison wrote in 1788 that the Article I provision against Bills of Attainder and ex post facto laws was aimed at ensuring the government did not wield legislation to undermine civil liberties. He wrote that the American populace had “seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.”

Jan Nessel of the Center for Constitutional Rights told The Post that federal government was using the military tribunals to “hide what the CIA is doing in its interrogation program behind the secrecy of the (military) commissions, which can allow the use of secret evidence, as well as evidence obtained through torture.”

Brig. Gen. Thomas W. Hartman, legal adviser for the military commissions system, defended the military tribunals, describing them as exhibiting “extraordinary” fairness.

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