On Monday, I’ll be publishing my own detailed response to the outcome in the federal court trial of Ahmed Khalfan Ghailani, and the Republican hysteria that has arisen because the jury dismissed 284 charges against him — relating to his alleged participation in the US embassy bombings in Africa in August 1998 — but found him guilty on one charge of conspiracy to destroy US property and buildings.
Ghailani faces 20 years to life as a result of this decision, and critics of the trial, who oppose criminal trials for terrorists on an ideological basis, mistakenly concluding that terrorists are not criminals, but are warriors in the Bush administration’s “War on Terror,” are incapable of realizing that they are fortunate that Ghailani could be prosecuted at all, given that he was held in a secret CIA prison for two years and two months following his capture in Pakistan in July 2004, and that, for at least some of that time, was subjected to torture.
These critics railed against Judge Lewis Kaplan’s decision, last month, to exclude the government’s star witness because it appeared that his name had only been revealed by Ghailani while he was being tortured, but even though this did not derail the trial, or prevent Ghailani from being successfully prosecuted, they now complain that the trial was a disaster and that he should have been tried by Military Commission at Guantánamo.
Below, I cross-post an incisive op-ed published in yesterday’s New York Times by Morris Davis, the director of the Crimes of War Project. Davis is a former Air Force colonel, and was the chief prosecutor for the Military Commissions at Guantánamo from 2005 to 2007, when, crucially, he resigned after he was put in a chain of command under the Pentagon’s Chief Counsel, William J. Haynes II (part of Dick Cheney’s inner circle of advisors on the “War on Terror”) who wanted information derived through torture to be used in the Commissions, in spite of Davis’ implacable opposition to its use.
Davis points out that there is no guarantee that a judge in the Commissions would have decided to overlook the use of torture, given that information derived through the use of torture is prohibited in the Commissions, and the only difference between the Commissions and federal court trials is that judges in the former have some leeway in deciding whether to accept information that may have involved some sort of coercion.
Crucially, his conclusions — and my own — indicate that critics of the verdict in the Ghailani trial want the Commissions to be a punitive fantasy land, as originally envisaged by Dick Cheney when he first resurrected them in November 2001, where the use of torture is acceptable — and may, indeed, be positively encouraged — and where military judges and juries, like automata, endorse without question the case put forward by the prosecution, even though, as Davis points out, the reality of the Commissions is very different, and Ghailani will almost certainly serve longer in prison than four out of the five prisoners prosecuted in the Commissions.
A Terrorist Gets What He Deserves
By Morris Davis, New York Times, November 18, 2010
Critics of President Obama’s decision to prosecute Guantánamo Bay detainees in federal courts have seized on the verdict in the Ahmed Ghailani case as proof that federal trials are a disastrous failure. After the jury on Wednesday found Mr. Ghailani guilty of only one charge in the 1998 African embassy bombings, Mitch McConnell, the Republican leader in the Senate, called on the administration to “admit it was wrong and assure us just as confidently that terrorists will be tried from now on in the military commission system.”
The verdict — in which Mr. Ghailani was found guilty of conspiring to blow up United States government buildings and not guilty on 284 other counts — came as a surprise to many, but the outcome does not justify allowing political rhetoric like Senator McConnell’s to trump reality.
True, prosecutors suffered a major setback when Judge Lewis Kaplan of the Federal District Court in Manhattan refused to permit the testimony of the only witness who could connect Mr. Ghailani to the explosives used in the bombings. The judge did so because Mr. Ghailani claimed that he revealed the identity of this witness after being tortured by the CIA. The prosecution did not contest his claim, arguing instead that the identificationof this “giant witness for the government” was only remotely linked to Mr. Ghailani’s interrogation.
Judge Kaplan disagreed, saying that Americans cannot afford to let fear “overcome principles upon which our nation rests.” He said that, given the same circumstances, a military commission judge might have reached the same conclusion and barred the testimony.
Many have scoffed at this claim. Representative Peter King, a New York Republican, insists that Judge Kaplan “doomed” the case. Yet a look at the record shows that Judge Kaplan’s assessment of what a military commission judge might have decided was well founded.
Consider Mohammed Jawad, an Afghan teenager who was charged with attempted murder for throwing a grenade at an American vehicle in Kabul in 2002. In 2008 a military judge, Col. Stephen Henley, suppressed incriminating statements Mr. Jawad had made after he was beaten and his family threatened while he was in Afghan custody. The military commission charges were later dropped and last year the United States sent Mr. Jawad home to Afghanistan.
We don’t know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.
In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.
Of the four detainees who participated in their military commissions, Omar Khadr, a Canadian citizen who was 15 when arrested, is serving the longest sentence after pleading guilty to murder. Yet he will serve no more than eight years behind bars, less than half of Mr. Ghailani’s minimum incarceration. Salim Hamdan, Osama bin Laden’s former driver, was sentenced to five and half years in 2008 but given credit for time served; five months later he was free. There is no reason to assume that a military commission sentence will be more severe than one from a federal court.
In addition, Mr. Ghailani may well serve his sentence at the “supermax” federal prison in Florence, Colo., where others convicted in the embassy bombings are confined. If so, he will spend more time in solitary and enjoy fewer privileges than those under the most restrictive measures at Guantánamo.
President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”
The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.