"First they ignore you, then they ridicule you, then they fight you, then you win." -- Mahatma Gandhi

Ghailani Verdict Illustrates Serious Problems With Trying Terrorists In Civilian Courts

November 18th, 2010 by jjjameson · No Comments

The Washington Post reports today, “The first former Guantanamo Bay detainee to be tried in federal criminal court was found guilty on a single conspiracy charge Wednesday but cleared on 284 other counts. The outcome, a surprise, seriously undermines – and could doom – the Obama administration’s plans to put other Guantanamo detainees on trial in U.S. civilian courts. After deliberating for five days, a jury of six men and six women found Ahmed Ghailani, 36, guilty of conspiracy to damage or destroy U.S. property but acquitted him of multiple murder and attempted-murder charges for his role in the 1998 bombings of U.S. embassies in East Africa.”

Importantly, The Post points out, “The Obama administration had hoped that a conviction on most, if not all, of the charges would help clear the way for federal prosecutions of other Guantanamo detainees – including Khalid Sheik Mohammed and four alleged co-conspirators accused of organizing the Sept. 11, 2001, attacks. The administration did not want to rely exclusively on the military commissions that the George W. Bush administration had made a centerpiece of its detention policy. President Obama’s strategy, however, has run into fierce, cross-party opposition in Congress and New York, in part because of concerns that it would be harder to win convictions in civilian court. The failure to convict Ghailani, a native of Tanzania, on the most serious terrorism charges will bolster the arguments of those who say the military prison at Guantanamo Bay, Cuba, should be kept open, both to host military commissions for some prisoners and to hold others indefinitely and without trial under the laws of war.”

The Post also notes, “[T]he verdict was still a blow to administration officials, who were quietly confident that Ghailani would be found guilty on all charges. For some, a conviction on only one count amounted to a close call. Had he been cleared of all charges, the administration would probably have been forced to take Ghailani back into military custody rather than see him released.”

In fact, Obama administration officials were not so quiet about their confidence on what would happen to Ghailani. A year ago, Attorney General Eric Holder, declared, “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.” In May 2009, Holder said, “By prosecuting Ahmed Ghailani in federal court, we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya.” Asked last month about a key witness being excluded from the Ghailani trial and if that would make it harder to try terrorism suspects in civilian courts, Holder responded, “I think the true test is, ultimately, how are these cases resolved? What happens? Can these cases be brought into Article III Courts and can they be successfully resolved from the government’s perspective? … And at the conclusion of the Ghailani case, I’ll ask you to ask me that question again.”

Unfortunately, it appears the Ghailani trial has shown the accuracy of long-standing Republican concerns and critiques about trying terrorists in civilian courts. As Senate Republican Leader Mitch McConnell said today, “Yesterday’s acquittal in a federal court of accused terrorist Ahmed Ghailani on all but one of 285 charges of conspiracy and murder is all the proof we need that the administration’s approach to prosecuting terrorists has been deeply misguided and indeed potentially harmful as a matter of national security. You’ll recall that Attorney General Holder assured the American people last year that Ghailani would not be acquitted of the charges against him. . . .  He said Ghailani’s prosecution in civilian court would prove its effectiveness in trying terrorists who are picked up on the battlefield. At the time, most Americans wondered why we would even take the chance. And now they’re wondering when the administration will admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system that was established for this very purpose at the secure facility at Guantanamo Bay, or detained indefinitely, if they cannot be tried without jeopardizing national security.”

Republicans have long warned that trying terrorists in civilian courts is the wrong approach for a host of reasons. The Obama administration should change course and return to the military commission system.

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