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However, this outcome was far from inevitable. Ghailani’s saving grace was that, just before his trial, a key witness was barred from testifying before the court. This witness would have admitted to selling explosives to Ghailani, and the prosecution claimed it was crucial to its case. Unfortunately, because knowledge of this witness was acquired using intense interrogation, his testimony was deemed inadmissible by the judge. The most important aspect of the Ghailani prosecution — which would have held him accountable for his part in the murder of 224 people — was impermissible. Had the Ghailani case been handled by a military tribunal, which doesn’t consider the method by which evidence is obtained, the damning testimony would not have been stricken and Ghailani’s guilt in this case would have been far less questionable. That is, unless a military commission would seriously entertain the idea that Ghailani would buy explosives for use in a conspiracy without intending to killing people. Even if there was doubt, military tribunals do not have to be unanimous and hearsay evidence is admissible. As a result, Ghailani could have been put to death, per the Military Commission Act, or otherwise justly held accountable for massacring hundreds of innocent people, including 12 Americans.
Instead, Ghailani was found “not guilty” of committing a mass murder. On the other hand, the fact that Ghailani will still face life in prison is practically accidental. If Ghailani had been a lone terrorist, and there was no conspiratorial evidence (yet the key witness’s testimony had been excluded on the same grounds), the outcome in the matter would have been far more sinister. Keep in mind that this is only the first case to be tried — and the system did not work.
The debate now turns to what the Obama administration will do henceforth. It has been almost two years since President Obama signed an executive order authorizing the shutdown of the Guantanamo Bay detention facility. One hope was that the civilian court system would help handle Guantanamo terrorists and move the U.S. in a more “enlightened” direction. However, the outcry over this policy has been incredibly consistent. Mere hours after the verdict in the Ghailani case was delivered, public contempt only resumed more vigorously. This will surely put a chill on any hope of clearing out Guantanamo cells through the criminal justice system. If the Obama administration concedes that military tribunals are most appropriately dealt with through military tribunals (while implicitly legitimizing the idea that detainees are not criminals, but enemies of war) there will likely be an equally strong push to hold the tribunals in Guantanamo and keep the facility functioning.
More pertinently, the Ghailani verdict comes in advance of the long-awaited decision in the case of Khalid Sheikh Mohammed, the lead conspirator of the 9/11 terrorist attack. Attorney General Eric Holder recently tantalized the press by revealing that a decision was imminent regarding where the confessed-terrorist would be tried. The most recent reports, however, have suggested that the administration does not have the appetite to pursue this case further. In wake of the Ghailani verdict, perhaps it will lose the political will to enact this woeful policy for good.
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