Terror Verdict Tests Obama’s Strategy on Civilian TrialsBy Charlie Savage
New York Times
November 18, 2010
The mixed verdict in the case of the first Guantánamo detainee to be tried in a civilian court on Wednesday quickly re-ignited a fierce debate over the Obama administration’s effort to restore the role of the traditional criminal justice system in handling terrorism prosecutions.
Ahmed Ghailani will face between 20 years and life in prison as a result of his conviction on one charge related to the 1998 embassy bombings in Africa. But because a jury acquitted him on more than 280 other charges -- including every count of murder -- critics of the Obama administration’s strategy on detainees said the verdict proved that civilian courts could not be trusted to handle the prosecution of Al Qaeda terrorists.
"This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts, said
Representative Peter King, Republican of New York. “We must treat them as wartime enemies and try them in military commissions at Guantánamo.”
Adding political force of such criticism, Mr. King is set to become the chairman of the House Homeland Security Committee in January, and he promised to use oversight hearings to pressure the administration over its handling of terrorism trials.
Several other soon-to-be-powerful Republican lawmakers – including Lamar Smith of Texas, in the incoming Judiciary Committee chairman – made similar statements denouncing the use of civilian courts to prosecute terrorism cases.
Still, some proponents of using the regular court system rejected potrayals of the verdict as a disaster.
Among them, Mason Clutter, the counsel of the Rule of Law Program at the Constitution Project, a bipartisan non-profit group, said that Mr. Ghailani will serve a lengthy sentence and will have far fewer arguments to make in appealing his conviction than if he had faced a military trial.
“The system worked here,” she said. “I don’t think we judge success based on the number of convictions that were received. I think we judge success based on fair prosecutions consistent with the Constitution and the rule of law.”
Ms. Clutter also noted that most of the usual arguments that proponents of military tribunals make about the risk of civilian trials – like extreme security costs, grandstanding by the defendant, and the disclosure of classified information – did not happen in the Ghailani case.
Preet Bharara, the United States attorney for the Southern District of New York, said late Wednesday that his office would seek a life sentence for Mr. Ghailani.
The jury did not explain its verdict, which seemed contradictory: it convicted Mr. Ghailani of conspiring to blow up the buildings, but acquitted him of conspiring to murder the people inside the buildings. Some legal observers speculated that it might have been a brokered deal among the jury, after signs this week that one of the 12 members had been holding out for a different result than the other 11.
Moreover, many observers attributed any weakness to the prosecution’s case to the fact that the Judge Lewis A. Kaplan of Federal District Court, who presided over the trial, refused to allow prosecutors to introduce testimony from an important witness apparently because investigators discovered the man’s existence after interrogators used abusive and coercive techniques on Mr. Ghailani.
Much of the criticism of the verdict was premised on the idea that such evidence would have been admissible in a commission trial. Mr. Smith, for example, pointed to the exclusion of that evidence as undercutting the idea that foreign terrorists “can be adequately tried in civilian courts.”
“The judge in this case, applying constitutional and legal standards to which all U.S. citizens are entitled, threw out important evidence,” he said. “The result is that the jury acquitted on all but one conspiracy count.”
But proponents of civilian trials contended that such criticism was based on a faulty premise. In his order rejecting the witness, Judge Kaplan strongly suggested in a footnote that a military commission judge would have excluded that testimony, too, pointing to restrictions against the use of evidence obtained by torture in military trials.
Still, arguments over the factual details of the case were overshadowed by the political dynamics of the verdict.
The case had been closely watched by both proponents and critics of Attorney General Eric H. Holder Jr.’s decision in November 2009 to prosecute Khalid Sheikh Mohammed and four other accused conspirators in the terrorist attacks of Sept. 11, 2001, in the federal courthouse in Manhattan.
At the same time, he sent five other detainee cases to the military commissions system, with the expectation that many more referrals to both systems would quickly follow. But by early January, the White House had pulled back the decision about holding a Sept. 11 trial in New York amid an uproar over the potential costs and security disruptions and anxieties following the failed attempt to bomb a Detroit-bound airliner on Dec. 25, 2009.
In the months that followed, two detainees have pled guilty before military commissions at Guantánamo, and two major terrorism suspects -- Najibullah Zazi, who was plotting to blow up subways in New York, and Faisal Shahzad, who attempted to blow up a car bomb in Times Square – have pled guilty in civilian courts.
But the question of where Mr. Mohammed will be prosecuted has remained in limbo, and Mr. Holder has made no more referrals from the detainee population to either system.
While Judge Kaplan could still sentence Mr. Ghailani to a life sentence, even some proponents of civilian trials acknowledged that his acquittal on most of the charges against him was damaging to their cause because it was a stark demonstration that it was possible that a jury might acquit a defendant entirely in such a case.
Several critics explicitly noted Mr. Holder Jr.’s vow that “failure is not an option” in the prosecution of accused conspirators in the Sept. 11 attacks.
“This complicates the equation with regard to civilian trials of high-level Al Qaeda detainees that the administration would not release” even if they were found not guilty, said Juan C. Zarate, who served as deputy national security adviser for combating terrorism in the Bush administration from 2005 to 2009 and who has argued that civilian trials should be an option to use against terrorist defendants.
“The paradox with these kinds of cases has always been that if these individuals are found not-guilty, will the American government let them go free, which is the construct of a criminal proceeding? And the answer is no. That is the reality. This case highlights that tension, and will complicate the political debate about how to handle more senior Al Qaeda figures, like Khalid Sheikh Mohammed.”