It’s rather amazing that the media is already spinning former Gitmo detainee Ahmed Ghailani‘s conviction on conspiracy charges as a complete disaster for the administration, and a blow against the argument for trying terrorists in civilian court. It’s true that Ghailani was acquitted on most of the other charges, including more than 280 charges of conspiracy and murder, but he still faces a minimum of 20 years, and possibly a life sentence. In fact, it reinforces the argument that civilian courts are actually tougher on terrorists than military commissions. 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. Those opposed to the use of civilian trials argue that civilian courts can’t “handle” terrorists. They literally just did. They’ve done it hundreds of times before.
In the last military commissions trial, which involved Omar Khadr, the detainee plead 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. This was actually one of the harsher military commissions sentences–David Hicks got nine months, Salim Hamdan got five months. We’re supposed to view a minimum sentence of 20 years as a “failure.”
Even if the Ghailani verdict is the result of evidence being excluded as a result of torture, the process in a military commission wouldn’t have necessarily gone differently. Coerced evidence is only allowed in military commissions based on the discretion of the presiding judge, and there’s no guarantee that a military judge would have allowed the Ghailani witness to testify where Judge Lewis Kaplan refused. In his ruling on the matter, Kaplan explicitly suggested that the evidence wouldn’t be admissible in a military commission either. If you want to get accurate intelligence and secure harsher sentences for terrorists, then you don’t torture them. As Marcy Wheeler points out, in addition to Ghailani’s treatment, Kaplan ruled that it wasn’t clear that the witness Ghailani’s statements led to was not himself coerced.
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, but my guess is that they lack the strength of character to do so.
