The Ghailani Verdict and American Justice

A federal jury in New York yesterday returned a guilty verdict
against accused Terrorist Ahmed Ghailani on one count of conspiracy to
blow up a government building, a crime which entails a sentence of 20
years to life, but acquitted him on more than 280 charges of murder and
conspiracy relating to the 1998 bombings of the U.S. embassies in Kenya
and Tanzania. Last month, the federal judge presiding over the case,
Lewis Kaplan, banned the testimony
of a key witness because the Government under George Bush and Dick
Cheney learned of his identity not through legal means but instead by
torturing Ghailani (and also possibly coerced the testimony of that witness).
The verdict will provoke predictable, fact-free, fear-mongering attacks
on the American judicial system and on President Obama for using it in
this case -- renowned legal scholar Liz Cheney and heralded warrior
Bill Kristol wasted no time spewing these trite accusations -- but this outcome actually proves the opposite.

Initially, it should be noted that the verdict in this case -- no
matter what it was -- would be largely inconsequential in terms of
Ghailani's imprisonment. He has already been imprisoned without charges
for six years, including two years at a CIA "black site," and
yesterday's verdict means he will spend decades more in prison.

But even had he been acquitted on all counts, the Obama
administration had made clear that it would simply continue to imprison
him anyway under what it claims is the President's "post-acquittal detention power" -- i.e., when an accused Terrorist is wholly acquitted in court, he can still be imprisoned indefinitely by the U.S. Government under the "law of war" even when the factual bases for the claim that he's an "enemy combatant" (i.e.
that he blew up the two embassies) are the same ones underlying the
crimes for which he was fully acquitted after a full trial. When he
banned the testimony of the key witness, Judge Kaplan, somewhat
cravenly, alluded to and implicitly endorsed this extraordinary detention theory as a means of assuring the public he had done nothing to endanger them with his ruling (emphasis added):

[Ghailani's] status as an "enemy combatant" probably would permit
his detention as something akin to a prisoner of war until hostilities
between the United States and Al Qaeda and the Taliban end even if he were found not guilty in this case.

Most news accounts are emphasizing that trying Ghailani in a
civilian court was intended by the Obama DOJ to be a "showcase" for how
effective trials can be in punishing Terrorists. That's a commendable
goal, and Holder's decision to try Ghailani in a real court should be
defended by anyone who believes in the rule of law and the Constitution.
But given these realities, this was more "show trial" than "showcase"
since the Government would simply have imprisoned him, likely forever,
even if he had been acquitted on all counts.

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