War of Military vs. Civil Terrorism Trials

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    NEWSLETTERS

    TK

    If you rely on headlines and partisan politicians for news, you’d be forgiven for believing that the just-concluded civilian trial of former Guantanamo detainee, Ahmed Khalfan Ghailani, was, as Rep. Peter King (R-N.Y.) described, “a total miscarriage of justice.”

    It wasn’t — certainly not in the way King and others may mean.

    When Ghailani is sentenced in January, he is likely to get anywhere from 20 years to life in prison for his role in the 1998 bombing of the U.S. embassy in Tanzania. While King is infamous for his past support of the IRA, when it comes to Al Qaeda he clearly takes a less sympathetic view toward terrorism — so presumably he’s not upset that Ghailani is to be locked up for at least 20 years.

    What King is probably referring to is that Ghailani was acquitted on more than 280 charges and only found guilty on one. That charge, however, was conspiracy to destroy government buildings and property. It was the reason the Federal Bureau of Investigation first indicted him, and was the main charge prosecutors intended to convict him on – given the evidence. (Evidence including that he helped buy the truck used for the bombing and stored a detonator.)

    Prosecutors often throw as many charges as they can at suspects, to see what works best in court. Al Capone, remember, was convicted for tax evasion.

    But it was the acquittals that generated headlines. The Washington Post’s “Ahmed Ghailani, Gitmo Detainee, Acquitted of All but 1 Charge in N.Y.,” was typical.

    The significance of the one guilty verdict was largely ignored. In the Washington Post story, for example, it finally showed up in the seventh paragraph.

    Those who rushed to condemn the trial might be doing it because the acquittals support their personal view that the Obama administration is making a big mistake trying terrorists in civilian courts. These critics prefer military commissions.

    “This tragic verdict,” King declared, “demonstrates the absolute insanity of the Obama administration’s decision to try Al Qaeda terrorists in civilian courts.”

    The Washington Post noted: “The outcome, a surprise, seriously undermines — and could doom — the Obama administration's plans to put other Guantanamo detainees on trial in U.S. civilian courts.”

    But how would Ghailani have fared in a military commission?

    Consider the case of Salim Hamdan, Osama bin Laden’s driver and bodyguard, who knew that Al Qaeda was responsible for the 1998 East Africa embassy bombings and the 2000 bombing of the USS Cole, and also knew about 9/11 before it happened. He was tried in a military commission in 2008, and only received a five and a half year sentence. Because of time served, he was soon released. Today, he is free in Yemen. 

    This isn’t to say military commissions are bad. Sometimes they are a more suitable place to try terrorists than civilian courts. It depends on factors like the intended target and type of evidence. But it’s a decision that the Justice Department and prosecutors are best suited to make.

    After the 2008 Hamdan verdict, The Washington Post, indicative of the then-predominant attitude, reported, “Hamdan's trial by the first U.S. military commission since World War II was viewed as a test case of a system that the administration has been pushing, despite fierce opposition and repeated delays, since just after the Sept. 11, 2001, terrorist attacks. The result -- a mixed verdict and an extraordinarily light sentence -- could raise questions about the administration's strategy of taking high-profile terrorism trials out of civilian courts and bringing them before the military.”

    How times change.

    What’s instructive when trying to make sense of the Ghailani trial is to contrast it with the 2001 trial of four other men involved in the East Africa embassy bombings -- Mohamed al-'Owhali, Khalfan Khamis Mohamed, Mohamed Odeh and Wadih el Hage. In that trial – also in a federal court – the defendants were each sentenced to life without parole.

    The Ghailani trial was different -- not because of where he was tried, but because of what happened before he was brought to trial. After Ghailani was captured in Pakistan in 2004, he was subjected to harsh interrogation techniques at a Central Intelligence Agency black site.

    Because these techniques – which taint any confession, since coercion makes statements unreliable and inadmissible – were used, the prosecutors couldn’t use his statements. The judge also barred prosecutors from using a key witness, Hussein Abebe, who was planning to testify that he sold Ghailani the TNT used for the bombing.

    Abebe was barred because the prosecution learned about him from Ghailani -- while he was being subjected to the harsh techniques. In the 2001 Embassy trial, the detainees had not been subjected to any coercive techniques, and their confessions were allowed. Especially given the difficulties the Ghailani agents and prosecutors faced, they ought to be commended for securing the 20 years to life verdict.

    When harsh interrogation techniques were first introduced in 2002, agents from the FBI, NCIS, and the CIA protested -- warning they were not only ineffective, but also ignored the long game -- and would make future trials difficult.

    Their warnings have been proven right.

    What’s ironic about King’s condemnations of the Ghailani trial is that he was a strong advocate of using coercive techniques.

    That’s the “total miscarriage of justice” here.

    Daniel Freedman is the director of strategy and policy analysis at The Soufan Group, a strategic consultancy. He writes a regular column for Forbes.com.