Criminals or Enemy Combatants -- Obama Can't Keep Dodging In Terror Debate

The verdict in the government’s case against Ahmed Khalfan Ghailani, the first Guantanamo Bay detainee to be tried in Federal criminal court, is a stunner. It is hugely important. It is already provoking impassioned debate. And it is a decision that only a lawyer could love.

Finally, the outcome – a conviction on one of some 285 counts of murder and conspiracy -- should be both deeply reassuring and disturbing to all of us.

First, the good news (if one can use that term to describe any aspect of this terrible ordeal): New York is still standing. Let’s not forget that some terrorism experts warned that trying Ghailani in open civilian court herein New York would prompt terrorists to target the courthouse and create mayhem to punish Gotham for putting one of their own on trial. But nothing happened. Zip. Nadda. Trying Ghailani here did not make the city any more of a terrorist target than it already is.

Second, the jury of six men and six women, deliberating not far from the site of the World Trade Center, rendered American justice, as presiding U.S. District Court Lewis A. Kaplan said, “calmly, deliberately, and fairly” and with “fidelity to the constitution.” These were “ordinary people, people who are not beholden to any government, not even ours,” he said in praise of the jury.

Writing in Mother Jones, Karen Greenberg, head of the Center on Law and Security at New York University, argued that “for the first time” in such a high-profile terrorism case, “a jury had not been cowed by the notion that to be accused of terrorism is tantamount to being guilty.” The jury, she said, “did exactly what they were instructed to do” – weigh the evidence, consider the law, and decide the case “on the merits.”

But this is where the alleged great victory for the rule of law gets murky. After five days of often troubled deliberations – with one juror holding out against the rest -- the jury apparently concluded as his lawyers alleged, that the now 36-year-old Ghailani was “duped” into the conspiracy -- buying a truck and components for the explosives, storing a detonator at home, and letting his cellphone be the “operational” phone prior to the attacks that killed 224 people and maimed thousands in 1998 at the American embassies in Kenya and Tanzania.

Ghailani was convicted of only one of the 285 charges against him –conspiring to destroy U.S. buildings. He was acquitted of 284 counts of murder or conspiring to murder the 224 people in the buildings.

How can that be? Even some legal eagles found this puzzling. Writing in his blog “Lawfare,” terrorism legal expert Robert Chesney said it was “exceedingly hard to understand how a jury could conclude” that Ghailani conspired to bomb the embassy in question yet not also to kill the “inevitable victims of the bombing.” Did the jury think that Ghailani knew there was a plan was to bomb the embassy, but thought that the attack would be so small that it would not kill anyone? The verdict, he adds, “smacks of a compromise.”

Andrew C. McCarthy, who prosecuted the 1993 bombers of the World Trade Center, said the compromise undoubtedly reflected the presence of one “terrible” juror. “In exchange for the holdout’s agreement to convict on one important charge, the other jurors apparently agreed to acquit on all the rest. And like most compromise verdicts, it is irrational,” he wrote today for National Review Online.
We don’t know what was on the jurors’ minds, (though this being America, we will probably soon find out, despite the fact that jurors are supposed to be anonymous, presumably for their own protection). But there seems little doubt that the verdict was deeply affected by the prosecutors’ and judge’s decision to withhold crucial evidence from the jurors.

Early on in the case, the prosecutors chose not to present what prosecutors called Ghailani’s “confession” at Guantanamo in 2007 about his role in the attack. In the 52-page statement, Ghailani said that while he was never specifically told about the plot, he realized that the embassy would be hit “by putting the pieces of the puzzle together.”

He also acknowledged that he could have “saved many lives” if he had warned anyone.” He did not do so, he told interrogators, because “he thought of himself as being involved” and felt he was as guilty as Al Qaeda’s planners themselves. “He was “really bothered” by the number of Africans killed in Tanzania, the interrogation notes say, but not by the Americans who died there.

The prosecutors chose not to introduce the statement, which they claim Ghailani gave voluntarily, because his defense attorneys argued that the statements had been coerced and were hence inadmissible.

Nor did the jury have the testimony of witness Hussein Abebe. He would have told them that he had sold Ghailani the explosives for the strike. So presumably, Ghailani knew how forceful the explosion would be. But Judge Kaplan barred his testimony because the Bush Administration had learned of Abebe’s identity not through legal interrogation, but by torturing Ghailani in 2004 while in C.I.A. custody. While national security hardliners argue that the judge’s ruling shows why Ghailani should have been tried in a military commission, Chesney and Benjamin Wittes, neither a national security wimp, insist that a military court would undoubtedly have made the same call.

Torture is wrong. It is also illegal. The United States cannot begin accepting evidence secured in that way, be it in a civilian or military panel.

Despite the absence of this evidence, Ghailani, who has already been imprisoned without charges for six years, including for two years at a CIA "black site," is likely to spend the rest of his life in prison. Preet Bharara, the US. Attorney for the Southern District of New York, said that his office would seek the maximum penalty – a life sentence, in this case, a mandatory minimum term of 20 years in jail. Fear not: There is no chance that Ghailani will be buying a halal Sabrett’s hot dog on the streets of New York City anytime soon.

But this case seems destined to further enflame the already fierce debate about whether and where such terrorism suspects should be held and brought to justice.

It also seems likely to further undermine the Obama administration’s dogged determination to try already accused terrorists, even 9/11 plotter Khalid Sheikh Mohammed, in civilian court.

Even those who oppose such civilian trials in terrorism cases should be deeply troubled by the administration’s logic, and I use that word loosely.

Long before the trial began, Attorney General Eric Holder indicated that even if Ghailani were acquitted on counts of an indictment, the government could continue to hold him an enemy combatant under the “law of war.” Judge Kaplan referred to that ability in his decision not to permit the government to call Abebe as a witness.

If that is so, why did the administration go to the time, trouble and expense of staging this sham of a trial in New York? Knowing that Ghailani would most probably be incarcerated forever regardless of the civilian trial’s outcome, argued Glenn Greenwald, a legal analyst writing in Salon, made the trial in New York “more ‘show trial’ than ‘showcase’” for the government’s effort to continue trying terrorism cases in civilian court.

The Obama administration should not be permitted to have it both ways. It is time for the president to decide whether the Ghailanis of the world are particularly pernicious crooks and criminals or rather, enemy combatants involved in a war against the United States and its allies.

If they are merely criminals – never mind that Ghailani and KSM are not American citizens and were not arrested on American soil -- then civilian courts should decide their fate, unless as Wittes and others have argued, the government establishes a new civilian national security court for people specifically accused of terrorism.

If they are not American citizens or arrested on American soil, but enemy combatants involved in a war, justice should be rendered by military commissions either as swiftly as possible, or when this war against terrorism is declared over.

Dodging a broader decision about the nature of the conflict we have been waging threatens not only to further inflame the debate about how to try alleged terrorists, but also to make a mockery of what was perhaps an unsatisfying, but acceptable outcome in the Ghailani case.

Judith Miller is a writer, Manhattan Institute scholar and Fox News contributor.