Terror case: Is one conviction and 284 acquittals a success?

Ahmed Ghailani's acquittal on 284 of 285 counts revives criticism of the Obama administration's policy to try terror cases in civilian courts. White House hails the single conviction as a victory.

By , Staff writer

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    In this June 9, 2009 file courtroom sketch, Guantanamo detainee Ahmed Khalfan Ghailani (l.) listens as his civilian lawyer Scott Fenstermaker (r.) speaks at his arraignment.
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Wednesday’s acquittal of alleged Al Qaeda terrorist Ahmed Ghailani on 284 of 285 charges is reigniting a debate over whether terror suspects should be tried by military commissions at Guantánamo rather than in civilian courts in the US.

“The decision by this administration to try terrorists in civilian court was the wrong one from day one,” Rep. John Boehner of Ohio, the House Republican leader, said in a statement Thursday.

Mr. Boehner, who has been elected to become speaker in January, is calling for legislation that would require alleged terrorists to be tried by military courts, rather than civilian courts.

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His comments were in response to the announcement late Wednesday that a federal jury in New York City had found Mr. Ghailani guilty of engaging in a terror conspiracy. But the panel also acquitted the long-time Guantánamo detainee of all 284 other charges.

Conspiracy conviction emphasized

Officials at the Justice Department and White House brushed aside the prosecution’s weak showing in the New York trial, portraying the single-count conviction as a victory. They emphasized that Mr. Ghailani is facing 20 years to life in prison after being found guilty on the conspiracy charge.

“I would point out, as a general matter, that there are very few federal crimes that carry a mandatory minimum of 20 years,” said White House spokesman Robert Gibbs.

Mr. Gibbs told reporters that the administration had not ruled out civilian courts for future terror trials.

But the administration’s position on the issue has been murky since Attorney General Eric Holder reversed a decision to try alleged 9/11 mastermind Khalid Shaikh Mohammed in the same federal courthouse in lower Manhattan in which Ghailani’s trial was held.

It remains unclear whether President Obama and Mr. Holder are still interested in bringing Mr. Mohammed to the US for trial. Other options include a military commission or simply continuing to hold Mohammed without charge at Guantánamo as an unlawful combatant.

Bipartisan criticism

Criticism of the Ghailani trial wasn’t exclusively from Republicans. Democratic Sen. Jim Webb of Virginia said Thursday the verdict “affirms what I and others have said from the beginning: those charged with crimes of war and those who have been determined to be dangerous law-of-war detainees do not belong in our courts, our prisons, or our country.”

He added: “I again call on President Obama to use the new military commission system that is in place to try the terrorist detainees currently held at the Guantánamo detention facilities.”

The Ghailani trial was being closely watched because he was the first Guantánamo detainee transferred by the Obama administration from the detention camp in Cuba to stand trial in a civilian court. As a criminal defendant, Ghailani was entitled to full constitutional protections.

Analysts saw the trial as a test case for the Obama administration’s efforts to demonstrate that the federal court system can be an effective tool in the fight against terrorism. The administration has also expressed interest in showing the world that the US judicial system is capable of offering a fair trial – even to suspected Al Qaeda terrorists.

'Legal system works'

Supporters of using civilian courts said Ghailani’s lopsided verdict was proof the trial was fair.

“This trial shows that our legal system works,” Rep. Jerrold Nadler (D) of New York said. “Despite the negative predictions of some, the trial was effective and transparent, with no security problems in the heart of Manhattan.”

“The world has seen that the American criminal justice system is both fair and relentless, just as it has been shown to be hundreds of times before, when terrorists were tried and convicted under both the Bush and Obama administrations,” he said.

Ghailani’s conviction stems from his alleged role in two simultaneous truck bomb attacks on Aug. 7, 1998, against the US Embassy in Nairobi, Kenya, and the US Embassy in Dar es Salaam, Tanzania. The blasts killed 224 people.

Ghailani was accused of purchasing the truck and other materials used in the Tanzania attack.

Prosecutors presented evidence that Ghailani used a fake passport to fly to Pakistan one day before the bombings. Two Al Qaeda operatives were also on the plane, they said.

Ghailani did not dispute his role in purchasing some of the materials. But he insisted that he was unaware that they would be used in a terror attack.

Many commentators have suggested that the lopsided verdict in the New York trial is a result of a pretrial ruling by US District Judge Lewis Kaplan.

Prosecutors wanted to call a witness from Tanzania who sold the TNT used in the Tanzania blast to Ghailani. But Judge Kaplan ruled that since the government learned of the witness’s name as a result of harsh and coercive interrogations, prosecutors could not use the information to help convict Ghailani.

The Fifth Amendment protects criminal suspects from being forced to provide evidence against themselves or from being forced to confess. It also prevents the government from using a coerced statement as evidence at trial.

Military judges have more leeway

The rules for military commissions prevent use of information obtained under torture, but they allow a military judge more leeway in deciding when to admit certain pieces of coerced evidence.

“Rules designed to safeguard American citizens from oppressive police interrogations have no place governing military and intelligence services grilling alien enemies,” said Kent Scheidegger of the California-based Criminal Justice Legal Foundation.

“Evidence incriminating Ghailani in the killing of 12 Americans and hundreds of other innocent people was excluded by those rules,” he said. Scheidegger urged the administration to try future terror suspects before military commissions.

Other analysts see the 284 acquitted counts as proof of a fair system. “The jury heard the evidence and delivered a verdict that – unlike military commission trials – we can trust,” said Hina Shamsi, director of the ACLU National Security Project.

“We should be proud of a system that isn’t set up to simply rubberstamp the government’s case no matter how little reliable evidence there may be,” she said. “Federal courts are not only the right place but the most effective place to prosecute terrorism suspects.”

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