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A Terrorist Victory

Posted By N.M. Hungerford On November 18, 2010 @ 12:50 am In FrontPage | 61 Comments

A landmark court decision was handed down Wednesday in the case against Ahmed Ghailani, a Guantanmo Bay detainee accused of taking part in the 1998 U.S. embassy bombings in Tanzania and Kenya. Ghailani, a Tanzanian national, was acquitted of all but one of the 286 charges levied against him, most of which were for the murder of the 224 people killed in the embassy bombings. After a disturbed juror asked to be removed from the deliberation process last week, many feared that the Ghailani trial, the first U.S. detainee trial to be conducted in a civilian court, would yield a hung jury. Few, however, predicted such a propitious verdict for the al-Qeada collaborator, an outcome which carries heavy implication for the Obama administration and its controversial quest to try Guantanamo detainees in the criminal justice system.

The trial took place in lower Manhattan before a jury of six men and six women. In addition to the murder (and attempted murder) charges, Ghailani, who is a former Islamic cleric, was also accused of conspiring with Osama bin Laden and al-Qaeda. Ghailani had been held in Guantanamo since September 2006 until being transfered to New York in 2009. The decision to try Ghailani in New York City — a “trial” balloon, if you will — was met with fierce opposition from both hawkish conservatives and heedful liberals alike. The trial proceeded for five weeks and the jury deliberated for five days before rendering its verdict.

Many are already claiming a victory of sorts for the Obama administration, and the Justice Department wasted no time issuing a written statement claiming to be “pleased” that Ghailani “now faces a minimum of 20 years and a potential life sentence for his role in the embassy bombings.” Mason Clutter from the Soros-linked Constitution Project declared, “The system worked here.” Did it? In all likelihood, the now-convicted terrorist will indeed face life in prison. Such glowing pronouncements, however, fundamentally misunderstand the broader — and more disconcerting — issue at stake.

A puzzling aspect of the Ghailani case is the one count for which the defendant was found guilty: taking part in a conspiracy to destroy U.S. property. Prima facia, it is unclear how a jury could find someone guilty of conspiracy, but not, by extension, hold that person accountable for the deaths that resulted from that conspiracy.

In ordinary jurisprudence, the prosecution must prove intent beyond a reasonable doubt. In this case, the defense portrayed the defendant as an unwitting collaborator, or, as Ghailani’s attorney Peter Quijano put it:

This innocent, naive boy was used as a dupe by his friends…Call him a pawn, call him a fall guy, but don’t call him guilty.

The upshot is that, according to his defense team, Ghailani knew that he was participating in a concerted effort of some kind, but, hypothetically speaking, this does not necessarily mean that he was aware that what he was participating in was meant to have lethal consequences. At least the jury decided it could not determine intent to kill given the lack of probative evidence and the apparently successful obfuscation of the true nature of the defendant’s state of mind at the time the bombing occurred.

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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