Obama's Handcuffs
Was the Ahmed Ghailani verdict a victory for the rule of law, or the final nail in the coffin of the Obama administration's attempt to try terrorists in civilian courts?
A U.S. federal criminal court in Manhattan made history Wednesday when it issued a verdict in the case of Ahmed Ghailani, the first former Guantánamo Bay detainee to be tried in an American civilian court. The result wasn't exactly what the White House was hoping for: Ghailani was acquitted on 284 out of 285 charges related to the 1998 U.S. embassy bombings in East Africa. He was found guilty of one count of conspiracy, which carries a possible life sentence, and a minimum sentence of 20 years in prison.
Both the Obama administration and its critics were quick to use the ruling as ammunition in the ongoing debate over how to balance national security and the rule of law in the war on terror. Rep. Peter King (R-NY) decried the verdict as a "total miscarriage of justice," and said that it exposes "the absolute insanity of the Obama administration's decision to try al Qaeda terrorists in civilian courts."
White House spokesman Robert Gibbs soon fired back. The trial "incapacitated somebody that has committed a terrorist act and because of that incapacitation is not going to threaten American lives," he said. He also affirmed the president's continued commitment to closing Gitmo.
Who's right? To get some answers, Foreign Policy asked six legal experts, former policymakers, and human rights activists to tell us what they believe this verdict means. Here's what they had to say.
Tom Malinowski:
Cynical commentators are portraying the Ghailani verdict as a blow to civilian trials. But in case facts still matter, we should remember: A civilian American jury convicted Ghailani, swiftly and with finality. He will serve at least 20 years.
Had he been tried before a military commission, the judges would have likely also thrown out evidence tainted by Bush-era torture. All of the members of Congress criticizing this verdict (including New York Rep. Peter King) voted for the reformed military commission rules that prohibited evidence derived from torture and cruelty and should know better.
If the U.S. government had sought instead to keep Ghailani in Guantánamo without charge, there is absolutely no certainty that it could have held him for as long as the 20 years -- minimum -- that he will serve under this sentence. Do the proponents of this option really think that U.S. courts will allow detainees to be held forever without trial, especially if, at some point in the next few years, Osama bin Laden and other top al Qaeda leaders are killed or captured, and the "war" against them is seen to be over? Under such an approach, the United States would not only be creating, for the first time in its history, a system of preventive national security detention, but the danger of releasing potentially dangerous people would be greater than if they were prosecuted in the civilian system.
President Obama now faces a decision about terrorism trials to come. In his National Archives speech last year, he laid out his policy -- that detainees who have violated American criminal laws and who can be prosecuted will be tried in civilian courts.
The president can do what he has said he believes is best for the country. Or he can allow local, not-in-my-backyard politics to influence what is fundamentally a decision about national security and the administration of justice. He can, in effect, create a new category of detainee: those who can be prosecuted, but won't be for political reasons. Such a decision would not only undermine the rule of law, but diminish the president's authority and invite even more irresponsible political attacks on his counterterrorism policies. Fortunately, it's his choice.
Tom Malinowski is Washington advocacy director for Human Rights Watch.
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