A victory for the rule of law

By Adam Serwer

The verdict yesterday in the case of former Gitmo detainee Ahmed Ghailani, who stood accused of helping facilitate the 1998 bombings of the U.S. embassies in Kenya and Tanzania, was a victory for the rule of law. Conservatives arguing that the trial was a failure because Ghaliani was acquitted on most of the charges are missing the point -- the integrity of American justice is more important than any single conviction, and, as it stands, Ghailani will very likely spend the rest of his life in prison for his crimes.

When President Obama first took office, most of the coverage of the burden left by the prior administration focused on the poor economy. But torture was as toxic to the cause of American justice as bad credit default swaps were to the financial markets, as crushing as the worst recession since Roosevelt. The detention of terror suspects at Guantanamo had been so mishandled that there were no comprehensive case files on many of the detainees. Arguing that the verdict in the Ghailani case is the result of him being tried in civilian court is like saying Obama's bailout of out the banks or the stimulus caused the recession.

It was in this context that the administration did the right thing in bringing Ghailani to trial in civilian court, despite the fact that he had spent two years being tortured at a CIA black site. Conservatives rubbed their hands with glee at the possibility that the case would fall apart when Judge Lewis Kaplan excluded the testimony of a key witness because his identity had been gleaned through torture -- a witness whose own testimony may have been coerced.

There's no evidence that trying Ghailani before a military commission would have produced a different verdict. This wasn't a capital case, and in either forum the admission of such evidence is up to the discretion of the judge. In a footnote, Kaplan wrote that the evidence would have likely been excluded based on the military commissions rules. "Even if they did not," Kaplan wrote, "the Constitution might do so, even in a military commission proceeding." Kaplan couldn't have been more clear. The law wasn't making Ghailani's prosecution more difficult, torture was.

The military commissions have, by and large, been a disaster, only securing five convictions in their entire existence. In the last military commissions trial, which involved Omar Khadr, the detainee pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying, and received an eight-year sentence. He'll serve the first year at Gitmo, then he'll be transferred to Canada where he could be eligible for parole after serving two thirds of his sentence. That was actually one of the harsher military commissions sentences -- David Hicks got nine months, Salim Hamdan got five months. And we're supposed to view Ghailani's minimum sentence of 20 years as a "failure"?

It's true that the crimes Ghailani was charged with are more serious. But as former Bush-era assistant attorney general Jack Goldsmith explains, a conviction under the military commissions would have been more vulnerable to appeal, and as his colleagues Ben Wittes and Robert Chesney write, it's not clear that Ghailani could have been tried for the crimes for which he was accused under the military system.

So here's the reality: Ghailani's trial took a mere month, at the fraction of the cost of flying translators, jurors, lawyers and reporters back and forth from Guantanamo. He will likely spend the rest of his life in prison. There were no opportunities to use the court as a "platform" to preach terrorism, and no security threats that disrupted the lives of New Yorkers. Opponents of the use of civilian trials often argue that civilian courts can't "handle" terrorists. They literally just did. They've done it hundreds of times before.

If the verdict does not ultimately reflect the level of responsibility Ghailani holds in the deaths of more than 224 people, the failure to secure justice on their behalf lies squarely on the shoulders of those in the Bush administration who sanctioned Ghailani's torture in the first place. That shame is fully theirs to bear.

In any just system, the government runs the risk of acquittal. But as Thomas Jefferson wrote, trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." It is perhaps fitting that those who supported using torture techniques borrowed from Chinese communists would demand a show trial where the outcome is preordained.

Adam Serwer is a staff writer at The American Prospect, where he writes his own blog.