And Justice For All: An Update

Ahmed Ghailani was the first Guantanamo detainee to be tried in civilian court.  Below is a post I wrote in November 2010, after Ghailani's conviction for his role in the 1998 embassy bombings in Kenya and Tanzania, and the predictable outcry from conservatives that he should have been tried by a military commission.  Today, Ghailani was sentenced to life in prison.  The government was able to try and convict an alleged terrorist in a public jury trial in a civilian court.  With the imposition of the maximum sentence sought by the prosecution, it will be pretty hard for the right to argue with any credibility that military tribunals must be used in these cases.  It doesn't mean they won't try.

And Justice For All 

'No, no!' said the Queen. 'Sentence first - verdict afterwards.'

 Nov. 18, 2010.  Ahmed Ghailani was convicted of conspiracy for his involvement in the 1998 embassy bombings in Kenya and Tanzania.  Ghailani, the first Guantanamo detainee to be tried in a civilian court, will be sentenced to somewhere between 20 years and life in prison, most likely life. As The New Yorker's Amy Davidson notes, "the verdict came after five days of deliberations, four weeks of trial, a year in a Manhattan jail, three years in Guantánamo, and two in a darker sort of prison, a “black site” run by the C.I.A."

Predictably, as the Times reports, because Ghailani was acquitted of all but one count, including the murder counts, "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."  Thus, N.Y. Rep. Peter King contends that "we must treat them as wartime enemies and try them in military commissions at Guantanamo."  Conservatives like King appear to be arguing that our system of justice didn't work because it wasn't rigged to ensure convictions on all counts.  As Davidson states, however, "our legal system is not a machine for producing the maximum number of convictions, regardless of the law."

Or as counsel of the Rule of Law Program at the Constitution Project 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.”

One argument offered in favor of a military tribunals is the ability to use evidence obtained through torture.  However, in this case, where evidence from a key witness whose identity was obtained through torture was deemed inadmissible, the judge made clear that a military commission judge would have excluded that testimony as well.

The trial proved that our justice system does work.  Greg Sargent asserts that the reality is "Ghailani's trial took a mere month, at the fraction of the cost of flying translators, jurors, lawyers and reporters back and forth from Guantanamo. He will likely spend the rest of his life in prison. There were no opportunities to use the court as a "platform" to preach terrorism, and no security threats that disrupted the lives of New Yorkers. Opponents of the use of civilian trials often argue that civilian courts can't "handle" terrorists. They literally just did."  And Jack Tapper quotes a senior administration official:  "So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and -- despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one -- not one -- security problem associated with the trial."

Amy Davidson makes a critical point in rebutting the assertion that the use of civilian trials creates significant hurdles for the prosecution -- and conviction -- of terror suspects:  "if time in the extra-judicial limbo of black sites, and the torture that caused some evidence to be excluded, makes prosecutors’ jobs harder, the problem is with the black sites and the torture, and not with the civilian trials that might eventually not work out quite the way everyone likes."  Finally, as Glenn Greenwald says, " When a reviled defendant is acquitted in court, and torture-obtained evidence is excluded, that isn't proof that the justice system is broken; it's proof that it works.  A "justice system" which guarantees convictions -- or which allows the Government to rely on evidence extracted from torture -- isn't a justice system at all, by definition."