On the Ghailani Verdict

by Pejman Yousefzadeh on November 19, 2010

We may be disappointed with it, but we should not overreact to the jury’s decision, or bemoan it as some kind of catastrophe. As discussed by Benjamin Wittes and Robert Chesney, while it is disappointing that Ghailani was only found guilty of one of 285 counts, Ahmed Ghailani will likely spend the rest of his life behind bars, and for those who believe that a trial before a military commission would have to be preferable, they will have to consider the fact–emphasized by Wittes and Chesney–that military commission procedures and norms have increasingly become like those in federal courts. If we want to increase the chances that defendants can be found guilty of multiple counts, we will have to rely on interrogation techniques that cannot be categorized as torture so as to ensure that any evidence collected from those interrogation sessions is admissible.

That having been written, a case can still potentially be made for military commissions in that they are more likely to be able to deal effectively with graymail problems that come up during the course of discovery. I would not rule out the use of military commissions in dealing with future defendants, notwithstanding the fact that military commissions are no silver bullet.

For more on this issue, do read Wittes and Jack Goldsmith. Note the following, which people like me–who do believe that military commissions have value (as I indicated above)–will nevertheless have to grapple with in order to be intellectually honest about matters:

There is, however, reason to think that a commission trial would have presented problems not present in Ghailani’s civilian trial. One central problem is that the conspiracy charge on which Ghailani was nabbed might not be valid in military commissions; three sitting Supreme Court justices have said as much, and many scholars agree. On this and other issues from evidentiary and procedural rules to fundamental constitutional questions, military commissions raise legal uncertainties that have yet to be sorted out by appellate courts. Civilian courts, by contrast, are tried and true. They have produced a great many terrorist convictions, and a verdict in one is much easier to defend on appeal.

And note this as well:

While the Ghailani verdict does not argue for military commissions over civilian trials, it does highlight the attraction of military detention without trial at all. This is the traditional ground on which enemy soldiers have been held in wartime. The government has a lesser burden in justifying military detention before a habeas corpus court than it has in convicting a terrorist of a crime at trial. The courts broadly accept that Congress has authorized military detention and that it is a perfectly legitimate form of terrorist incapacitation. Yet the Obama administration, while embracing the legality and necessity of military detention, has expressed a strong preference for trials instead. The Post reported last weekend that the administration is rethinking that stance with respect to the Sept. 11 conspirators, and Ghailani’s verdict should spur that reconsideration.

A year ago Thursday, Attorney General Eric Holder said in connection with trying the Sept. 11 cases in a civilian court: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.” But the Ghailani prosecution illustrates, and any fair trial assumes, that failure is indeed an option.

Imagine that Ghailani had been acquitted on all counts. The administration would then have faced a terrible choice between releasing him or – as the attorney general and Judge Kaplan have said is possible – continuing to hold him in military detention indefinitely despite his acquittal. The first option would be unsafe for the nation and suicidal politically. The second option would look terrible in light of an acquittal and would harm the legitimacy of every subsequent terrorist trial.

This terrible choice – which came close to becoming a reality – reveals why military detention is fundamental and appropriate here. The reason the first option is unsafe and the second option is available is that Ghailani helped conduct a major terrorist operation on behalf of a group with which the country is at war. Military detention was designed precisely to prevent such fighters from returning to the battlefield. It is a tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation.

Goldsmith repeats this point on the value of military detention here.

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