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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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