The upshot of accused terrorist Ahmed Khalfan Ghailani’s trial looks like a perilously close call. For his role in the murderous bombings of two U.S. embassies in 1998, a New York jury found him not guilty on 284 counts, guilty on only one.
The 284-1 result has become Exhibit A for those who say a civilian court is no place for accused terrorists. It prompts renewed calls to try them in military commissions or specially created courts, which would presumably be less squeamish about using coerced evidence.
Even for those of us who argue that regular federal courts are just fine for terror defendants, those 284 not guilty verdicts in the Ghailani case produce an unsettling, internal tug of war between principle and consequence.
Do we really want to risk freeing someone who helped bomb U.S. embassies where 224 people died? Of course not.
But what means are we willing to use to justify that end? What principles would be shelved?
This case shows you can keep your principles and still have a safe nation, even a safer one than if we essentially approve torture by allowing its fruits as evidence.
Consider the facts.
Even with all the rights of a common criminal defendant, the 36-year-old Tanzanian has been found guilty of conspiring to destroy U.S. buildings, a crime that will put him in prison for at least 20 years and probably the rest of his life.
Sentencing guidelines clearly support locking him up forever because the conspiracy resulted in people dying. True, the jury found him not guilty of 224 murders. But in a finding related to the conspiracy charge, jurors also said his actions caused death.
(Yes, it’s an internally inconsistent verdict, signaling compromise within a divided jury. But it gives U.S. District Judge Lewis Kaplan all he needs to sentence Ghailani to spend his natural life behind bars.)
As for the fact that the jury said no to hundreds of other charges, don’t let the large number of acquittals blind you. For example, among them were 224 murder charges for each person who died in the bombings in Tanzania and Kenya. If the jury had reasonable doubt that Ghailani intended murder when he helped gather material used for the bombings, that one issue would have wiped out all those counts.
His defense argued he was duped into helping without understanding the goal of the plan. That apparently gave at least one juror reasonable doubt that he intended murder.
Four Life Terms
Consider, too, the fact that four co-defendants of Ghailani were also convicted in federal court in May 2001, in a trial that probably would have included Ghailani, except that he had not yet been found. All four were sentenced to life terms for a global conspiracy the government says was led by Osama bin Laden.
Jurors in that 2001 trial had the benefit of statements three of the accused made to authorities. But Ghailani’s jurors never got to hear what he told Federal Bureau of Investigation agents, when he essentially confessed.
Captured in Pakistan in 2004, by the time the FBI questioned him at Guantanamo Bay in 2007 he had been moved around to secret, so-called black sites run by the Central Intelligence Agency and subjected to “enhanced interrogation,” the government has acknowledged.
The defense calls it torture, but the feds aren’t handing out details. We can surmise the details aren’t pretty, or else surely they would have told jurors what Ghailani told the FBI.
The trouble with using his statement in court was the apparent coercion, not the venue. If he had been handled properly after his capture, as were his co-defendants, his statement probably would have been heard by the jury. But by the time Ghailani was caught, the George W. Bush-Dick Cheney administration had started water-boarding and otherwise enhancing interrogations, thus spoiling powerful evidence.
And moving his case to a military commission wouldn’t have changed that, anyway, as coerced confessions aren’t allowed there, either. This would be unconstitutional in any setting.
That said, a military commission might (or might not) have allowed a key witness that Kaplan refused to seat. The judge barred prosecutors from using Hussein Abebe, a Tanzanian miner who would have testified that he sold bomb-making material to Ghailani, including five crates of TNT, blasting caps and detonators.
Kaplan kept that witness off the stand saying the CIA had coerced Abebe’s name from Ghailani with “enhanced interrogation techniques.” Military tribunals have more leeway on coerced evidence, as long as the confession wasn’t forced, but it’s not clear one would have ruled any differently than Kaplan did.
With the venue for the trial of the water boarded Khalid Sheikh Mohammed up in the air, the Ghailani case takes on more importance. The venue decision for future terror trials shouldn’t be driven by a search for the most lax rules on using coerced evidence.
Principle should drive the decision, not the chances of winning a conviction. But if it’s results you want, the Ghailani case shows you can have both.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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