No Comment — November 18, 2010, 12:03 pm

The Verdict on Ghailani

Yesterday a Manhattan jury convicted Ahmed Khalfan Ghailani on a charge of conspiracy to destroy government buildings and property, in connection with the East African embassy bombings of 1998. He was acquitted on all the other charges. Nevertheless, he faces a minimum sentence of twenty years and the possibility of life in prison, which is the sentence prosecutors have sought from the outset.

Ghailani, a 36-year-old Tanzanian, was seized in 2004 and spent most of the next five years in a CIA-run black site, where he was repeatedly tortured (a fact which the government frankly accepted for purposes of the prosecution). The evidence adduced at trial showed beyond any doubt that he had played an important role in the logistical arrangements for the bombing. However, on another critical point, his own knowledge of the plans and therefore his willing participation, the evidence that was offered was all highly circumstantial—and apparently not very convincing to the jury. (The best and most detailed coverage of the trial has been provided by Karen Greenburg, the director of NYU’s Center on Law and Security, who attended the proceedings from pretrial motions through the verdict, and who correctly anticipated the outcome.)

The network news accounts that I watched last night were generally breathless, calling the verdict a “defeat” for “the Obama administration” and suggesting that it would raise the stakes in the struggle in Washington over federal courts versus military commissions as a proper forum for “the Guantánamo trials.” Discussion of the merits or details of the Ghailani trial was notably absent from these reports; apparently our criminal justice process is just a curious sideshow to political struggles. The comments made were generally ill-informed, and many were unsupported claims of fact. But that’s par for the course when major broadcast media attempt to cover politically charged trials.

The take-away message from the Ghailani verdict should be this: the system worked exactly as it should. The jury sorted carefully through the evidence, reviewing hours of transcripts and apparently having some heated argument about it. They rendered a verdict for the government on the charge which was, in their view, best supported by the evidence, and they acquitted on charges where the evidence was unpersuasive. This is exactly how the criminal justice system is supposed to work.

My sense is that the prosecution team did a solid job in presenting their case. The acquittals certainly had nothing to do with ineffective prosecution. On the other hand, there is no doubt that the government’s case was weakened by things the Bush administration did. First, torturing the prisoner to extract evidence and then attempting to use that evidence met with precisely the ruling that three hundred fifty years of Anglo-American precedent would lead us to expect: the evidence was excluded. Had the initial interrogations been carried out with tested, approved, and lawful methods, they might have yielded evidence that would have supported additional convictions. Second, there was a lag of over six years between Ghailani’s apprehension and his trial—that resulted from a political decision. During that time, two key witnesses for the government died, undermining their case. So it’s clear this case was not handled in the best or most efficient way, but the blame for that rests with the Bush team and not their successors.

Critics on the right have already started recriminations against the Obama administration, saying that this proves that cases like Ghailani should go to a military commission. But such claims are long on hot air and short on facts. The statistics suggest (PDF) that the conviction and sentence rates for military commissions are no higher than in civilian courts—indeed by present count, they lag behind. Moreover, the Ghailani case faced other problems, because it relates to the 1998 embassy bombings and not conduct post-9/11. The U.S. determination of a “war” dates to 9/11, which would make it a ridiculous stretch to include the embassy bombings cases—aspects of which had already been tried, successfully, in federal court. So even if we accept military commissions as a suitable vehicle, Ghailani is a more than problematic candidate.

Much of the media coverage has seen the trial as a pawn in a game of domestic politics, which certainly it has become. But does that serve America’s interest in justice? By trying Ghailani before a federal-court jury, the prosecution may well end up with the sentence it sought from the outset. More important, it may achieve that result through a process that is likely to be respected as fair around the world. If there is a legitimate “political” angle to the Ghailani trial, this is it–America’s reputation for justice is essential to its claim of leadership in the community of nations. That in turn has consequences that can be measured in terms of American lives and treasure.

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