Litigation

Verdict Revives Debate Over Detainee Trials

By Peter Hardin

A new round of debate is brewing over whether to try terrorism suspects in civilian courts, after a jury in New York acquitted Ahmed Khalfan Ghailani of all but one of more than 280 charges of conspiracy and murder.

?This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantanamo terrorists? in federal civilian courts, Rep. Peter King, R-N.Y., said, according to a New York Times article. ?We must treat them as wartime enemies and try them in military commissions at Guantanamo.?

Mason Clutter of the Constitution Project, a Justice at Stake partner, defended the civilian court system. ?The system worked here,? Clutter said.  She added:

?I don?t think we judge success based on the number of convictions that were received. I think we judge success based on fair prosecutions consistent with the Constitution and the rule of law.?

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.

The Times article quoted unnamed officials as saying that a 20-year sentence would be longer than most sentences issued in the military commissions system so far, and that prosecutors in some Guantanamo cases face major challenges in prosecuting cases because during the Bush administration, coercion was used to gain evidence. That makes the job harder for prosecutors whatever the legal venue.

Federal District Judge Lewis Kaplan ruled that a star witness could not be used in Ghailani’s trial due to coercion of Ghailani, who had identified the witness (see Gavel Grab). This may have weakened the government’s prospects in the case. But the judge also made pretrial rulings that could make future court trials of accused terrorists easier.

Matthew Miller, a Justice Department spokesman, embraced Tuesday’s verdict as a victory, according to a Miami Herald article:

“We respect the jury’s verdict and are pleased that Ahmed Ghailani now faces a minimum of 20 years in prison and a potential life sentence for his role in the embassy bombings.”

Liz Cheney, daughter of former Vice President Richard Cheney and co-founder of a group called Keep America Safe, joined with the group in making the following statement urging President Obama to “end this reckless experiment,” CNN reported:

“Reverse course. Use the military commissions at Guantanamo that Congress has authorized.”

Judge Kaplan told the jury it had shown that ?American justice can be rendered calmly, deliberately and fairly by ordinary people, people who are not beholden to any government, not even ours.?

In other coverage, a Bloomberg article was headlined, “Guantanamo Detainee’s Bombing Verdict May Discourage More Civilian Trials.” A Washington Post article said the verdict delivered “a blow to administration officials.”

In Huffington Post, Daphne Eviatar of Human Rights First wrote a commentary entitled, “Ahmed Ghailani Verdict Makes the Case for Federal Courts.” Glenn Greenwald wrote in Slate on the topic, “The Ghailani verdict and American justice.”

The “Room for Debate” feature of the New York Times today included commentaries by these people about prosecuting terrorists in civilian court: Robert Chesney, University of Texas School of Law; Andrew C. McCarthy, National Review; Diane Marie Amann, U.C. Davis School of Law; and Orin Kerr, George Washington Law School.

To learn more, click on Gavel Grab stories regarding detainees, or see JAS?s web page, Civil Liberties and National Security.

Full post as published by The Gavel on November 18, 2010 (boomark / email).