Ghailani and the Case for Military Commissions

On Tuesday, former Guantánamo Bay prison detainee Ahmed Khalfan Ghailani was sentenced to life in prison for his role in the 1998 American embassy bombings in Kenya and Tanzania, in which 224 people were killed.

Conservatives were quick to remind everyone that Ghailani was convicted of conspiracy to destroy property, not of murder -- and was acquitted on hundreds of other counts as a result. But conservatives retreated to this position only after all of their dire predictions proved false.

Conservatives argued that federal trials offer a "platform" for terrorist propaganda. But Ghailani didn't try to use the courtroom as a soapbox, and others who have tried have failed. They warned that Ghailani might get off based on the argument that his right to a speedy trial was violated, and they were wrong. There were no unauthorized revelations of classified information, and the trial itself, just the latest in a long line of terrorism trials in the Southern District of New York, occurred without incident. Despite conservatives' warnings of "catastrophe" over the exclusion of evidence gleaned through coercive interrogation, Ghailani, like his accomplices sentenced in October 2001, will spend the rest of his life in prison.

As former George W. Bush Justice Department official Jack Goldsmith wrote, there's a danger in using a single trial to come to a larger conclusion, and the fact that Ghailani would have been held in military detention even in the case of acquittal calls the legitimacy of the trial into question.

But if we look at the numbers, the case for military commissions becomes even weaker. Only five such trials have taken place, and most have handed out light sentences. Two of the five men convicted are already free. Only 1 percent of terrorism trials in civilian court end in acquittal, which makes absurd the notion that trying suspected terrorists in federal court represents an unnecessary risk of release. In a just trial system, there is a genuine risk of failing to convict. In an unjust system, there is no such risk. While Ghailani's trial was a victory for the rule of law, the possibility of post-acquittal military detention for a suspect threatens to turn even federal prosecutions into mere show trials.

Conservatives have argued justice was not served because of the exclusion of statements Ghailani gave to the FBI suggesting he was aware his actions would lead to the deaths of innocents. The absence of those statements didn't prevent Ghailani from receiving a life sentence, and there's no guarantee that the jury would have come to a different verdict even if they had been aware of the statements.

Regardless, the state prosecutes its cases based on the evidence it can present in court. But guilty parties accused of crimes other than terrorism sometimes escape punishment because due process must be upheld, and evidence is excluded because of its provenance. Taken to its logical extension, this argument calls for the abolition of the trial process and entire sections of the Constitution of the United States. For all the symbolic gestures of reverence they've made toward the Constitution lately, when it comes to Muslims accused of terrorism, some conservatives might actually be perfectly comfortable with the idea.

Ultimately, what this is really about is restoring the Bush administration's reputation. By preventing the use of civilian trials and Guantánamo Bay prison's closure through sheer political muscle, conservatives can turn around and portray such policies as "centrist" and argue that they've been vindicated on the merits when the opposite is true.

The Ghailani trial represents an example of the administration winning, being right on the merits, and still failing to argue its case in the court of public opinion. Al-Qaeda will never defeat the United States militarily, but allowing our fears to be twisted into making us afraid of our own laws, even when the system works, well that's a particularly tragic kind of defeat.

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