Many critics have pounced on the recent verdict against Ahmed Ghailani as a blow to the Obama administration's plans to prosecute the 9/11 defendants in civilian court. They have it wrong. The facts show that the administration is on the right track.
Ghailani was the first former Guantanamo detainee to be tried in civilian court. On Wednesday, he was convicted of conspiracy to destroy government property in connection with the August 1998 bombings of US embassies in Tanzania and Kenya. Although Ghailani was acquitted of the other charges against him, he still faces a minimum 20-year sentence and possibly life in prison. His future is akin to that of his co-defendants, who were tried in federal court nearly a decade ago and are spending the rest of their lives in prison without the possibility of parole.
But the case for prosecutions in civilian courts is not only about obtaining convictions; it is also about ensuring that verdicts are, fair, credible and reliable. That is important not because of a desire to coddle terrorists or naivite about the threats that they pose, but because fair trials make us safer.
The Guantanamo-based military commissions are indelibly tainted by the unlawful policies of the Bush administration, making them a gift to al-Qaeda recruiters. At enormous taxpayer expense over their eight years of existence, the military commissions have completed a pathetic five cases, three by plea bargain. Proceedings have been marred by endless irregularities and inconsistent application of ever-changing procedural and evidentiary rules. These flawed and untested procedures have yet to withstand appellate review, making verdicts they produce highly vulnerable to reversal.
Federal courts, by contrast, have prosecuted hundreds of terrorism suspects during the same period, among them the convicted 9/11 conspirator, Zacarias Moussaoui, and the convicted "shoe bomber," Richard Reid. Unlike the military commissions, federal courts are guided by 200 years of binding precedent and well established rules of evidence and procedures. That was abundantly clear during the Ghailani trial which--as even critics of the verdict cannot dispute-was conducted fairly and efficiently.
Critics of the verdict make much of the fact that the presiding judge, Lewis Kaplan, excluded the testimony of what the prosecution claimed was its star witness-a Tanzanian man named Hussein Abebe, from whom Ghailani allegedly bought explosives. The implication is that, had this trial taken place in the military commissions, Abebe's testimony would have been allowed, and Ghailani would have been convicted on all counts.
But Abebe's testimony was barred in part because even the government admitted it was the product of coercion--or, as Judge Kaplan described it, the "physical and psychological abuse of the defendant." Indeed, for some two years before being taken to Guantanamo, Ghailani was held at a secret CIA "black site," the purpose of which was to circumvent rules prohibiting cruel, inhuman or degrading treatment. Both federal courts and the military commissions prohibit any evidence derived from such practices.
Judge Kaplan also excluded Abebe's testimony because he found it not credible. The military commissions, too, must convict on the basis of only credible evidence.
The government jeopardized its own case by waiting six years to bring Ghailani to justice. Over time, the memory of witnesses fade, other witnesses become unavailable, and the quality of evidence suffers. In fact, to the frustration of examining attorneys, numerous witnesses during the Ghailani trial testified that they could not remember certain facts and details. More important, two witnesses who earlier had testified against Ghailani's co-defendants have since died. One was the man who previously testified he owned the truck purchased for use in the bombing and the second was a housekeeper who previously testified saw Ghailani with relevant al-Qaeda operatives at a home.
Judging by the evidence already presented at the military commissions against the 9/11 defendants, the government has plenty of evidence that is unrelated to abusive interrogations, including computers and cell-phones seized, conversations intercepted, and witnesses who have cooperated voluntarily. However, while the administration dithers, wringing its hands about where to try the 9/11 suspects, this evidence, too, is bound to get stale.
That is also why detention without trial is a dangerous option. Even under the most aggressive legal theories, the government can detain "combatants" without trial only until the end of hostilities with al-Qaeda. At some point, that day will come, and the courts will order the suspects released or tried. The 9/11 case is already nine years old. Its viability will only decrease with time. With so much at stake, why even contemplate taking the risk?