New York Terror Verdict Hailed as Vindicating Civil Trials

by , November 19, 2010

The conviction of the first Guantánamo Bay detainee brought to New York for trial is triggering a wide range of reactions from politicians and legal experts.

That trial ended dramatically at the federal courthouse in Manhattan this week, with Ahmed Khalfan Ghailani, 36, convicted of one count of conspiracy for his role in the 1998 terrorist bombings of the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, that killed 224 people, including 11 U.S. citizens. He was found not guilty on 284 other counts. 

The verdict appeared to surprise everyone in the courtroom. The lone guilty verdict was declared on a conspiracy to destroy buildings and property of the United States by means of an explosive. However, Ghailani was found not guilty of conspiring to kill the people inside those buildings. 

Despite the lopsided guilty-not guilty ratio, Ghailani nonetheless faces a mandatory 20-year prison term and, if the prosecutor prevails, a sentence of life imprisonment without parole. 

Jonathan Hafetz, formerly with the American Civil Liberties Union and now a law professor at Seton Hall law school, told IPS he believes the Justice Department’s overall assessment was proven correct – that the government could win a conviction with a potentially heavy sentence even after the judge excluded evidence that might have linked Ghailani more directly to the embassy bombings because it was the product of torture. 

Scott Horton, a constitutional scholar and a contributing editor at Harper’s Magazine, told IPS, "No doubt some critics will argue that this is a reason for kangaroo courts which automatically convict anyone who is brought before them and which, in the eyes of the world will have no credibility." 

The prosecution "used torture to develop their case. The court applied the rule that has been in place since the mid- seventeenth century – it excluded the evidence they gained through torture," he said. 

"But in the end, Ghailani was convicted of the crimes as to which the government put forward good, untainted evidence, and acquitted on the balance. And that’s exactly the way the system is supposed to work." 

Holding terrorist trials in New York triggered major blowback after initial enthusiasm from New York Mayor Bloomberg and many members of Congress. It was argued that such "high profile" trials would tie up traffic in the City and make New York a target for terrorist attacks. 

But the Ghailani trial went virtually unnoticed by New Yorkers, who went about their daily lives, largely unaware that such a trial was being held. 

The Obama administration thought the Ghailani trial would demonstrate to critics that free and fair judicial proceedings could be held in federal civilian courts, as opposed to the military commissions convened at Guantánamo. That was to lay the groundwork for the trial of alleged 9/11 mastermind Khalid Sheik Mohamed, who was slated to be tried in federal civilian court. 

But Obama’s critics now feel even more determined to keep these trials out of federal courts. And shortly they will be in a Republican majority in the House of Representatives, where newly appointed chairmen of key committees will attempt to scuttle Obama’s policy and make military commissions the default venue for trials of suspected terrorists. 

That thrust will likely gain momentum with extreme right-winger Representative Peter King, Republican of New York, who is slated to become chairman of the House Homeland Security Committee in January. King said the Obama administration "should immediately abandon its ill-advised plan to try Guantánamo terrorists" in federal civilian courts. 

"We must treat them as wartime enemies and try them in military commissions at Guantánamo," he said. 

Lamar Smith, Republican of Texas, will be the incoming Judiciary Committee chairman, and fellow Republican Pete Hoekstra of Michigan, the incoming chairman of the Intelligence Committee. Both men, like King, have denounced the use of civil courts to prosecute alleged terrorists. 

But many legal experts say that convicting Ghailani on one count and exonerating him on so many others is a classic demonstration of the ability of federal civilian courts to follow the evidence and conduct fair trials. 

Kevin R. Johnson, dean of the University of California at Davis law school, told IPS, "I think the verdict shows that the ordinary criminal justice system can effectively hear and decide terror cases like the Ghailani case. Steps were taken to ensure safety of all involved and, by all counts, the jury took its job most seriously." 

"Importantly, that the case was tried in an ordinary federal court offers the result more legitimacy than if it were decided in a military tribunal. There is no claim that this was a ‘kangaroo court’ and all are left with more confidence in the jury’s verdict than a tribunal’s decision," he said. 

Bruce Fein, a political conservative who held top posts in the Justice Department former president Ronald Reagan, told IPS, "The Ghailani trial and verdict underscores the Kafkaesque nature of the legal architecture that has been erected to combat international terrorism. Even if he had been acquitted on all charges, Ghailani could be imprisoned for life at Guantánamo Bay as an enemy combatant without accusation or trial." 

"Critics of the verdict believe that international terrorist trials should be prosecuted like Stalinist show trials in which the guilty verdicts are as guaranteed as the rising and setting of the sun. They believe in justice resembling the Queen of Hearts in Alice in Wonderland: sentence first, verdict afterwards," he added. 

Dixon Osburn, director of the Law and Security program at Human Rights First (HRF), noted that while federal courts have convicted more than 400 terrorists since 9-11, military commissions have convicted just four. 

"The conviction of Ghailani in federal court should give impetus to the administration to try other detainees from Guantánamo in federal court," he said. "The conviction means that another terrorist will likely spend the rest of his life in prison. The world will also see the verdict as fair and just, unlike the commissions at GITMO." 

Other human rights organizations, including the Center for Constitutional Rights, which has litigated extensively on behalf of Guantánamo prisoners, expressed similar sentiments. 

"Undoubtedly, the Ghailani verdict will be used by President Obama’s political opponents to argue the inappropriateness of trying Guantánamo detainees in civilian court," Peter Shane, a professor at Ohio State University’s law school, told IPS. "That argument assumes, however, that a military commission would have admitted the evidence that the civilian court excluded – which is by no means clear." 

David Frakt of the Barry University School of Law has more than a passing acquaintance with Guantánamo Bay and its prisoners. A lieutenant colonel in the U.S. Air Force Reserves JAG Corps, he was the first defense counsel to win the pretrial dismissal of all charges against his client, Mohammed Jawad, a juvenile from Afghanistan, and also won Jawad’s release through a habeas corpus petition in federal court. 

"This is certainly not the end of terrorist trials in federal court, but it may be the end of transfers of Guantánamo detainees to be tried on terrorism charges in federal court, and it may very well be the death knell for the possibility of trying the alleged 9-11 co-conspirators in federal court," he told IPS. "If so, it is a great tragedy, because this trial highlights the fairness of the federal system."

(Inter Press Service)

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