11-18-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted from The Huffington Post
Of all the disastrous consequences predicted by critics of civilian trials for Guantanamo detainees, a mixed verdict that could land a terrorist life in prison wasn’t one of them.
Last year, Liz Cheney called holding such trials in New York “unconscionable”; Karl Rove called it “an utter, unmitigated disaster for the security of the United States.” And just recently, former New York Mayor Rudolph Giuliani said “it would be safer if someone like [Ahmed Ghailani] were tried in a military court.”
So on Wednesday, right after the jury returned its verdict – guilty of conspiracy to destroy government property, but not guilty of mass murder – the critics changed their tack.
“Bad ideas have dangerous consequences,” said Liz Cheney, Bill Kristol and Debra Burlingame, directors of Keep America Safe, an organization dedicated to undermining Obama national security policies. “The Obama Administration recklessly insisted on a civilian trial for Ahmed Ghailani, and rolled the dice in a time of war,” they said in a statement released after the verdict on Wednesday. “It’s dangerous. It signals weakness in a time of war.”
Really? The notion that it’s a weakness to provide a fair trial in an established and respected justice system where the verdict is not pre-ordained seems rather odd. Is it “reckless” to rely on our Constitutionally-mandated jury system to determine whether an accused man is guilty or innocent?
Ever since this trial started, critics of the Obama administration have used the case to score political points. But they’ve taken it in a particularly disturbing direction. The claim that trying Ahmed Khalfan Ghailani in a federal court is “rolling the dice” exhibits a shocking disdain for the American Constitution and justice system.
Earlier, this same group hammered federal district court Judge Lewis Kaplan for excluding from the trial a witness whose identity was derived by torture (the government conceded only that it was “coerced”) in a secret CIA prison. In a lengthy opinion, Judge Kaplan explained that he also found the witness, who testified in a pretrial hearing, not credible. Still, Liz Cheney used the opportunity not to decry that the United States had tortured a man in prison, but to claim that the Obama administration’s decision to try Ahmed Ghailani in a civilian court was “irresponsible and reckless.” Jack Goldsmith, the conservative Harvard law professor, argued he should never have been tried anywhere at all.
What’s really going on here is not that the Keep America Safe folks are so concerned about safety, or even so shocked by the jury’s verdict in the Ghailani case. After all, none of the critics expounding on it today cared enough about it to sit through the trial and watch the evidence presented. If they had (I did), they would have realized that the government never presented any direct evidence that Ghailani intended to kill anybody. While jurors could have inferred that intent from Ghailani’s purchase of a truck and gas tanks that ended up being used in the bomb in Tanzania, or from his association with other plotters in Kenya, it’s not surprising that jurors had a “reasonable doubt” about what Ghailani really knew about the conspiracy and whether he really knew it would lead to the death of all of those people.
As it is, convicted of conspiracy to destroy government property, Ghailani faces a minimum of 20 years in federal prison and could spend the rest of his life there.
According to the Department of Justice, federal courts have convicted more than 400 people on terrorism-related charges since 9/11. With the recent plea deal of Omar Khadr, the Canadian child soldier at Guantanamo who will serve just one more year in prison there, military commissions now have convicted five.
Back in Washington, Republican leaders such as Rep. John Bohener and Howard “Buck” McKeon continue to insist that the Obama Administration try suspected terrorists at Guantanamo rather than in the United States. They’re apparently unaware of the military commissions’ poor track record. And they seem unconcerned about whether the United States showcases its respect for the rule of law by providing real trials in a legitimate justice system, or mistrusted show trials staged by a military commission.
Ghailani’s case is significant not only for the outcome of his trial, but because it’s been viewed as a test of whether the civilian court system can handle the cases of another 35 Guantanamo Bay detainees slated for trial.
I’d say that the Ghailani trial just passed that test with flying colors.
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