Justice Was Not Done

Andrew C. McCarthy, a former federal prosecutor, is a contributing editor at National Review and author of "Willful Blindness: Memoir of the Jihad."

Updated February 1, 2016, 5:24 PM

Critics of the Obama administration’s use of the civilian courts to try enemy combatants in wartime – and I am one – understandably point to Wednesday’s stunning verdict in the Ahmed Ghailani terrorism trial as a powerful demonstration that the policy is wayward.

With a military commission, the government would not be rolling the dice with a civilian jury.

Ghailani was acquitted on all but one of the 285 counts, including all 224 murder charges. These numbers are striking, but they shouldn’t be overstated. After all, the principal goal of a terrorism prosecution is to neutralize the terrorist, and Ghailani will almost certainly be sentenced to life imprisonment on the one count of conviction, conspiracy to bomb government buildings. Given that the Justice Department chose not to seek the death penalty, Ghailani would not be facing a more severe sentence even if he had been convicted on every count.

But the blunt fact is that justice was not done, as Attorney General Eric Holder boldly promised it would be. This case did not belong in the civilian justice system, and that was abundantly clear long before the jury’s compromise verdict.

Construing civilian due process standards, the trial judge denied prosecutors the ability to call the crucial witness who would have testified to Ghailani’s purchase of the TNT used in the 1998 embassy bombings. Taking a huge chance, the Justice Department elected not to appeal that decision – betting that its remaining evidence would be enough. The government’s reluctance to litigate the admissibility of Ghailani’s confession (during which he identified the TNT seller) also meant the jury would learn of neither his admissions nor the fact that he became a celebrity in al Qaeda circles after the bombings. Thus, civilian due process and what now seems like Justice Department overconfidence gave Ghailani an opportunity falsely to portray himself as an innocent dupe, and he exploited it.

He would not have been able to do that in a military commission trial. In a commission, moreover, there would have been a jury of military officers. The government would not have been rolling the dice on the selection of a civilian jury, where it’s always possible to get an irrational juror who frustrates the deliberations, which may well have happened here.

Even if the jury had convicted on all the counts, honest observers would still have had to concede that using the civilian court significantly complicated the government’s ability to convict a terrorist responsible for killing hundreds of people.

Given that military commissions, a firmly rooted method for handling war crimes, have been approved by Congress and acknowledged as legitimate by the Obama administration, it was reckless to run these risks just to make a political point about the effectiveness of civilian justice -- and, no doubt, to try to lay the ground work for a civilian trial of Khalid Shaikh Mohammed and the 9/11 plotters.

In making that political decision, the administration banked on a repetition of the 2001 trial of the same indictment, in which four defendants were convicted of bombing the embassies in Eastern Africa. To the Justice Department, those convictions suggested a high likelihood that Ghailani could be convicted under civilian due process standards. And the prior trial meant the best argument against civilian prosecutions – namely, the need to disclose sensitive intelligence – would be muted because, for better or worse, much of the discovery in the case had already been disclosed in the first trial.

Obviously, the Justice Department expected to be able to crow about 285 convictions as a demonstration of the civilian system’s effectiveness. It is irrational to convict on a conspiracy to bomb and not on the actual bombing and related murders, so it was a good bet that finding Ghailani guilty of any counts would lead to convictions on all counts. But because it appears one juror was a hold out, the other jurors had to horse-trade in order to avoid a hung jury and a burdensome retrial. Compromise verdicts, however scandalous they may seem, are an accepted part of civilian justice, elevating our interest in finality over the integrity of the result. Still, the fact that we abide them does not mean they meet our expectations of justice.

The civilian prosecution of Ahmed Ghailani was a misadventure because politics was permitted to trump justice and, predictably, justice was not done.

Military Commissions Aren't Better for Convictions

Updated December 8, 2014, 4:49 PM

Robert Chesney, a debater in this discussion, responds to Andrew McCarthy.

Andrew McCarthy argues that military commissions are superior to civilian criminal prosecution in at least three respects, and asserts that the decision to prosecute Ghailani in New York was both unwise and improperly motivated.

There is substantial debate on whether conspiracy charges can be treated as war crimes prosecutable by military commission.

I disagree with his analysis — particularly because his argument does not address a significant weakness of the military commission system when applied to this particular case.

First, Andrew suggests that a military commission would not have excluded a witness who would have given testimony regarding Ghailani’s purchase of TNT. He characterizes the grounds for exclusion of that testimony as “civilian due process standards,” implying that this exclusion would not have occurred in a military commission proceeding. But it’s hardly obvious that this is so.

It remains unclear whether detainees prosecuted by commission at Guantanamo may invoke Fifth Amendment due process protections; at a minimum, a decision to admit testimony in a commission prosecution that would have been excluded on constitutional grounds in a civilian proceeding would be subject to years of appellate litigation on that point. And in any event, the military judge might well have reached a comparable conclusion under the commission’s own rules even absent constitutional compulsion. At most we can say there was a prospect for more leeway, but nothing certain.

Second, he argues that Ghailani’s own interrogation statements might have been admissible in a commission proceeding. But again, that is not at all certain. Setting aside the constitutional issues, the commission’s own rules provide that a statement “allegedly produced by coercion” prior to December 30, 2005 can be admitted only if the judge determines that the statement is “reliable and possessing sufficient probative value” and the interests of justice would be served by admitting the statement; if the statement was obtained by coercion after that date, the judge also must find that the interrogation did not involve methods constituting cruel, inhuman, or degrading treatment. Perhaps what Ghailani said might make it through those hoops, but it is at least as likely that it would not.

The third advantage? That a panel of military officers in a commission would be more likely than a civilian jury to convict. Maybe, maybe not. The only real example we have is the commission proceeding against Salim Hamdan, where the military officers on the panel did convict the defendant on a material support count but acquitted him on the more serious conspiracy charge.

Finally, there is a huge drawback with trying Ghailani in a commission rather than in federal court. While there is no doubt whatsoever that it was legitimate to prosecute Ghailani under various criminal conspiracy counts, there is substantial debate as to whether conspiracy can be treated as a war crime prosecutable by military commission.

When the Supreme Court in Hamdan v. Rumsfeld confronted this issue, several justices explicitly rejected military commission prosecution of conspiracy charges, while others reserved decision. It may be that the court ultimately could determine that commissions may prosecute conspiracy charges, but that involves substantial litigation risk that cannot simply be ignored.

Topics: Ahmed Ghailani, Law, Terrorism