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The Ghailani Verdict: A Giving Tree in the Terror Law Debate

4 years ago
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Wednesday's surprising Ahmed Khalfan Ghailani verdict -- 285 acquittals and one big conviction by a federal jury in New York -- is its own little Giving Tree. It will give succor in the weeks and months ahead to people across the legal and political spectrum who have been arguing now for nine years about what to do about terror suspects. All from the trial of a man who wasn't even accused, much less convicted, of any involvement in the terror attacks of September 11, 2001.

Ghailani was instead tried for his role in the August 1998 U.S. Embassy bombings in Kenya and Tanzania. Captured by U.S. forces in Pakistan after 9/11, Ghailani was first interrogated and tortured by U.S. officials for his ties to al-Qaeda. And then, after a stint at the terror law prison at Guantanamo Bay, Cuba, he was transferred to New York for trial, a rare holdover between the pre- and post-9/11 worlds of terrorism cases. Few, including Osama bin Laden himself, hold that dubious distinction. Like Ghailani, bin Laden was a mysterious co-conspirator in the 2001 African Embassy bombing trial, the last big terror trial before the Twin Towers fell.

Even though his bombing co-conspirators were tried and convicted in New York nearly a decade ago, jurors Wednesday refused to hold Ghailani culpable for the 224 terror deaths that day in August 1998. They refused even to find him guilty of any sort of terrorism, settling instead for a lone guilty verdict of the "ol' reliable" sort -- conspiracy to destroy government buildings and property. This after a case in which the defense presented no evidence or witnesses. This after a case in which the suspect himself never testified. And all from the trial of a man who was the first detainee from the terror prison at Guantanamo Bay to be prosecuted in federal court.

Many people will see the Ghailani verdict as a bruising blow to the Obama administration's strategy of trying to empty and close Gitmo by transferring some of its prisoners to civilian courts in the United States. These critics will point to this result -- more than 285 acquittals, only one conviction -- and declare it proof that federal trials for terror suspects, especially terror suspects who have been tortured while in U.S. custody, are just too risky. They will look at the scoreboard -- 285 to 1-- and say that there are too many independent-minded jurors out there just waiting for a chance to gum up the works in civilian terror trials. They will also say, again, that those who fight with al-Qaeda do not deserve the same rights that common criminals do.

Tribunes in this camp will point directly to U.S. District Judge Lewis A. Kaplan's ruling, early last month, that precluded prosecutors from presenting their strongest witness against Ghailani -- a man who would have told jurors that he sold Ghailani the TNT used to blow up the embassies. They will point to this ruling and declare it a wondrous example of how weak-kneed judges (employing basic constitutional doctrine) can foul up a perfectly good conviction and show trial. It is true, we now know, that Judge Kaplan's ruling severely undermined the government's case against Ghailani. And another federal judge likely will gut part of the government's case against Khalid Sheik Mohammed, the alleged 9/11 mastermind, who like Ghailani was subject to repeated "harsh interrogations" by U.S. officials. We can't risk "a Ghailani" in the Mohammed case, these folks will cry.

But many other people will see the Ghailani verdict as a perfectly logical and just result to a particularly tricky problem faced by the White House and Justice Department. Sure, Ghailani wasn't convicted of the most serious charges against him, these rationalizers will declare, but he was convicted of a serious felony that brings with it a 20-year prison minimum and the possibility of a maximum sentence of life in prison without parole. Jurors may not have been made privy to the government's big witness -- but Judge Kaplan was. He has no illusions about this case. And he'll be sentencing Ghailani on Jan. 25. If the judge sentences the 36-year-old to federal prison for 50 years, which literally means 50 years, does it really matter whether the sentence is based upon one count or 20?

These folks will say the federal government has gotten with its Ghailani verdict the best of all worlds. The White House can proclaim to the world that even terrorists like Ghailani get fair trials in the United States, trials in which independent judges issue rulings against state interests despite public outcry. And at the same time, the Bureau of Prisons can make Ghailani's cot ready at the dreaded Supermax prison facility near Florence, Colo., where he'll share a jail, but no face time, with convicts like Zacarias Moussaoui, the first World Trade Center bomber Ramzi Youssef, shoe bomber Richard Reid, and the Oklahoma City bomber, Terry Nichols. Trials are messy, these folks will cry, but jurors almost always get it right in the biggest cases. In the meantime, Ghailani is no longer a Gitmo statistic or a Pentagon headache. He's simply a convict.

You can look at the Ghailani result and fear that federal jurors will be similarly spare with their convictions against Khalid Sheik Mohammed if his case makes it that far. Or you can dismiss the Ghailani result, declare it "apples and oranges" with the Mohammed case, because one was about a low-level operative in a bombing overseas that barely registered here, while the other would be about the mastermind of the largest crime in American history. You can blast Judge Kaplan for almost allowing a catastrophe (don't worry, Ghailani wouldn't have been freed even if he had not been convicted) or you can praise him for sticking to his guns, and to the Constitution, in an effort to give a despised defendant a decently fair trial.

No matter what you say, no matter which argument you favor, Ghailani's all but gone now. As Clemenza once said about Paulie: We "won't hear from him no more." And, really, does anyone want to complain about that?

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Phil Drew

I absolutely agree with your writer; justice was served by not only the verdict but also by the procedural correctness of the judge's ruling. Congratulations on a fair and safe resolution within the bounds of law, and farewell to cowboy tactics and torture!

November 22 2010 at 6:15 PM Report abuse rate up rate down Reply

"They will also say, again, that those who fight with al-Qaeda do not deserve the same rights that common criminals do." Ghailani is not a criminal. He is a military combatant. The civilian judge disallowed incriminating evidence gained by "torture", ie sleep deprivation claimed by Ghailani. Hereafter all Gitmo detainees are assured to claim they were tortured. No matter how you spin it, this verdict was a death knell to future civilian trials. It was also a stake in the heart of DoJ Eric Holder, as well as a blow to Mr Obama and all congressional Democrats.

November 18 2010 at 11:39 PM Report abuse +2 rate up rate down Reply

The total answer is this, no one who is a terrorist should be tried in a civilian court, period. Each and everyone of them fought in a war, you bleeding hearts are going to take this country down if this kind of justice is continued. You can bet your house that if our warriors are caught and tried, which they never would be, it would be the death penality for them. Some of you still haven't figured out those people want us dead.

November 18 2010 at 12:26 PM Report abuse +12 rate up rate down Reply

My guess is that the deal behind the scenes went this way-- Since there was one jurer holdout who was not properly screened prior to being a jurer-- and they didn't want to declare a mistrial-- they convinced the jurer if he or she would vote for the conspiracy charge- they would just drop the other charges Just another government goof along the list of letting government run our lives

November 18 2010 at 12:10 PM Report abuse +6 rate up rate down Reply

For the uninformed who are outraged by this verdict, please remember we are a civilized nation with a Constitution and Treaties. The judge and jury did their jobs. Perhaps some of the bloggers would favor a sham trial in the style of the USSR and Nazi Germany? If we are fighting for "freedom and justice," perhaps we did well when we we proved it.

November 18 2010 at 11:23 AM Report abuse -14 rate up rate down Reply

From my understanding...he delivered the explosives....and a high key witness was not allowed to testify...

November 18 2010 at 11:20 AM Report abuse +11 rate up rate down Reply

I cannot understand how a non-citizen can be tried in our criminal courts for TERRORISM. It makes absolutely no sense. This man was not charged with robbing a bank or even drunk driving. Its good to see that other commenters are rightly blaming the Obama Administration for this travesty.

November 18 2010 at 11:08 AM Report abuse +16 rate up rate down Reply

How do you think all the survivors and families of those who died feel about this trail. Convictions for murder do matter regardless of how this reporter feels.

November 18 2010 at 10:50 AM Report abuse +4 rate up rate down Reply

It just shows that this federal government will hold people with no evidence, and i believe the trial record speaks for itself, the man should have never been arrested and tortured, this government is out of control.

November 18 2010 at 10:46 AM Report abuse -9 rate up rate down Reply

Obama and Eric Holder, his U.S. Attorney General, are the most incompetent Lawyers ever to occupy the halls of our Government...They have both been advised to have these killers tried in a Military tribunal, already set up at Gitmo, for these non-citizens. But no, their whole plan was to try to embarrass the Bush Administration for their water boarding, and other CIA activities, they thought would help them politically. Now, not only will the cost, of appeals and attorney fees, continue to be charged to the American Taxpayer, but this animal could be out on appeal in a matter of a few months or years. Stop the madness...

November 18 2010 at 9:54 AM Report abuse +50 rate up rate down Reply

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