As I've written before, the idea that the military-commissions rules would have allowed the excluded evidence in the Ahmed Ghailani case is far from certain. Col. Morris Davis, the former chief military-commissions prosecutor at Guantanamo Bay, makes the same point:
We don't know for certain whether a military judge would have reached the same conclusion as Judge Kaplan, but given the Jawad precedent it seems very possible. Those who claim to know that the government would have gotten a more favorable ruling in a military commission are ignoring the record.
In any case, Mr. Ghailani now faces a sentence of 20 years to life. Even if he gets the minimum, his sentence will be greater than those of four of the five detainees so far convicted in military commissions. Only one defendant, Ali Hamza al-Bahlul, has been sentenced to life, and this was after he boycotted his tribunal and presented no defense.
Davis adds:
President Obama is in a no-win situation when it comes to trying detainees — any forum he chooses will set off critics on one side of the debate or the other. I hope he pauses to reflect on what he said at the National Archives in May 2009: “Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists.”
The Ghailani trial delivered justice. It did so safely and securely, while upholding the values that have defined America. Now Mr. Obama should stand up to the fear-mongers who want to take us back to the wrong side of history.
The fact that the universal reaction to the verdict in the "objective" press yesterday was that Ghailani's conviction was a disaster is a mark of how completely pre-spun the mainstream media was by the torture wing of the Republican Party. Since the beginning, the facts about the military commissions -- their light sentences, the difficulty the government has had bringing trials to completion -- have been completely subsumed by reporters willing to act as stenographers to conservatives' accusations of weakness.
