Critics are blasting the Obama Administration because Ahmed Ghailani, the Tanzanian-born terrorist recently tried in a federal court in New York, was convicted on only one count of terrorist-related activity. Some are even calling for Attorney General Eric Holder to resign or be fired. Their criticisms, however, ring more of politics than legal understanding; and both Holder and President Obama should resist their efforts.
Yes, Ghailani was convicted on only one of the 285 counts charged against him in the indictment; and all related to the 1998 bombings of United States’ embassies in Kenya and Tanzania that killed 223 people. But that does not mean the jury system failed us or that the sky is now going to fall on us, as some of the critics imply.
Ghailani was captured in Pakistan in 2004, and is one of more than a dozen suspected terrorists who had been held in detention facilities at the United States Naval Base at Guantanamo Bay, Cuba to be transferred to the United States for trial in our court system.
But much like the Queen of Hearts in Alice’s Adventures in Wonderland, following last week’s verdict against Ghailani, Newt Gingrich, Tim Pawlenty and other neo-conservatives loudly criticized both Obama and Holder as soon as the single guilty verdict was announced. Just as the Queen in Wonderland decreed, “No! No! Sentence first – verdict afterwards,” these neo-conservative critics had long-ago concluded Ghailani was guilty on all 285 counts charged against him.
These and other critics have a beef with the Obama Administration that extends far beyond this particular case. They object to the entire process of trying persons accused of violating U.S. laws against terrorist acts in U.S. courts. In their view, persons charged with violating U.S. anti-terrorism laws should be tried only by military tribunals where, in their view, torture-induced evidence is acceptable and admissible.
This last point is relevant because the judge in the Ghailani case — the respected jurist Lewis Kaplan — excluded evidence the government wanted to use against Ghailani, because it was procured through the use of so-called “enhanced interrogation techniques”; more commonly known as “torture.”
Predictably, critics of Obama and Holder are seizing on the trial judge’s exclusion of torture-induced evidence as proof that our civilian court system cannot properly provide a forum for trying those accused of violating our federal criminal laws outlawing acts of terrorism. In an interview with the conservative magazine Newsmax, Newt Gingrich claimed, “They’ve endangered our national security. They allowed a federal judge to throw out most of the evidence.”
This sentiment was echoed in an editorial at The New York Times, in which another prominent neo-conservative, Andrew McCarthy, wrote, “[c]onstruing civilian due process standards, the trial judge denied prosecutors the ability to call the crucial witness who would have testified to Ghailani’s purchase of the TNT used in the 1998 embassy bombings.”
In fact, the result likely would have been the same had the administration elected to try Ghailani in a military tribunal. As legal observers Benjamin Wittes and Jack Goldsmith noted in the Washington Post, “[t]here is not much reason to think that the government would have had an easier time against Ghailani on this score if it had proceeded in a [military] commission.” Indeed, the 2010 edition of the “Manual for Military Commissions,” makes clear that statements or evidence obtained through torture are inadmissible in a military commission proceeding, just as in a civilian trial.
Despite claims to the contrary, the judicial process used in the Ghailani case has served us well in the past also. For example, Ramzi Yousef, the terrorist responsible for the 1993 World Trade Center bombing, was tried, convicted, and sentenced in the same federal court district as Ghailani. As a result of his conviction in that case, Yousef is spending the rest of his life in a supermax prison.
Moreover, it is not as if Ghailani will soon be walking free. The conspiracy count on which he was convicted carries a sentence of 20 years to life. It is highly unlikely Ghailani will ever spend another day of his life outside a prison.
The system did not fail, as Holder’s critics have suggested — it worked. And it will continue to do so; especially if politics is kept out of the process.
-by Bob Barr, The Barr Code