Litigation

Terror Trial Debate Fires Up Anew

By Peter Hardin

Major newspaper editorial boards, politicians and activists have quickly joined in an impassioned and sharp debate over civilian trials for terror suspects, reignited by a mixed jury verdict in the case of Ahmed Khalfan Ghailani (drawing at left).

The “fierce criticism” that erupted over the verdict cast “new doubts on the Obama administration’s goal of trying other prisoners” in the civilian courts, a New York Times article reported, and there was widespread discussion of how accused 9/11 mastermind Khalid Shaikh Mohammed may be tried — if it comes to that.

A New York Times editorial defended the federal courts, while an angry Wall Street Journal editorial excoriated Attorney General Eric Holder (photo at right) for pursing the case in federal court.

Declared the Times editorial:

“Some politicians want to keep terrorism trials in military courts because it makes them look tough. Unfortunately, this sort of bluster has led the White House to back off of its pledge to try Mr. Mohammed and other high-profile prisoners in the federal courts.

“What really makes this country strong is that it is based on laws not bluster. The federal courts have proved their ability to hold fair trials and punish the guilty. That is what we call getting the job done.”

The Wall Street Journal, on the other hand, slammed Holder and President Obama:

“Terrorist Ahmed Khalfan Ghailani was acquitted Wednesday on 284 of 285 counts associated with murdering 212 innocents, but the verdict on Attorney General Eric Holder was guilty as charged. His strategy of force-feeding terrorists into the civilian court system has turned into a legal and security fiasco.”

“Mr. Holder and his boss, the President, have in their ideological willfulness managed to hurt both the reputation of U.S. civilian justice and national security. The right policy is to separate the laws of war from the laws of civilian society. Burglars and muggers should be tried in civilian courts. Unlawful enemy combatants captured on the battlefield deserve to be held in Guantanamo and tried in military commissions. And if Mr. Holder can’t tell the difference, he should find a new job.”

Ghailani had faced charges tied to bombings of U.S. embassies in Kenya and Tanzania in 1998. For the one conviction tied to the embassy bombings, he will face a sentence between 20 years and life in prison. He was the first former Guantanamo Bay detainee to be tried in a civilian court (see Gavel Grab).

A Washington Post editorial said the Ghailani verdict “provides no sound argument to remove federal courts from the mix” of options for trying accused terrorists. It saluted the independence of the federal court system:

“The fact that a jury sitting in a terrorism case just blocks from Ground Zero declined to rubber-stamp the government’s assertions shows not the weakness of the federal court system but one of the principal strengths: independence.”

Senate Republican Leader Mitch McConnell said, according to a Washington Post article, that President Obama ought to offer assurances that “terrorists will be tried from now on in the military commission system that was established for this very purpose at the secure facility at Guantanamo Bay, or detained indefinitely, if they cannot be tried without jeopardizing national security.”

Minnesota Gov. Tim Pawlenty, a Republican and potential presidential candidate, said Holder should resign, according to a Minneapolis Star Tribune article.

Rep. Jane Harman, a California Democrat, said Ghailani could be handed a harsher sentence than all but one issued by military commissions. “More than 200 years of American jurisprudence and a clear track record of success should not be thrown out the window or falsely characterized for political advantage,” she warned. “The Obama administration needs to push back.”

Also in the Washington Post, Benjamin Wittes and Jack Goldsmith wrote a commentary headlined, “Skip the trials for terrorists,” staking out a case for military detention without trial. Another commentary by Michael Gerson in that newspaper was entitled, “Holder’s Gitmo mess.” Also writing a scorching criticism of Holder was Rich Lowry in National Review Online.

Full post as published by The Gavel on November 19, 2010 (boomark / email).