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Ghailani Trial Gets It Right

February 3, 2011

The Huffington Post, 2 Feb 2011: Last week, in a courtroom in New York City, U.S. District Judge Lewis Kaplan handed down a life sentence without parole to Ahmed Ghailani, a conspirator in the bombing of two U.S. embassies in Africa and the first Guantanamo Bay detainee to be tried in civilian court. The sentencing represents both a practical and moral victory for justice, fundamental rights and the rule of law.

Practically, by trying Ghailani in civilian courts, he was treated as the criminal that he is — not as a soldier, as those who advocate military commissions would have him be. I spent 30 years in the U.S. army fighting to defend the Constitution and protect our country. I know soldiers, and Ghailani is not a soldier. He does not deserve that status.

By denying Ghailani the distinction of a soldier, we’ve deprived him of the legitimacy that he and his cohorts want, demonstrating that the “clash of civilizations” theory al Qaeda uses to explain their actions is nothing but a fig leaf used to justify murder. They’re not soldiers in a war; they’re fanatic criminals. Terrorists need to inspire fear and awe to be effective. By stripping Ghailani of his war-fighter title, we’ve exposed him for who he is — a criminal — while not adding to the spectacle created by the terrorist act itself. We’ve sent a message to would-be terrorists around the world: You’ll find no glory in committing crimes against Americans and our allies. Insofar as you can deter a terrorist, what better way to do it than to blunt their ability to elicit terror?

The Ghailani sentencing also underscores the effective track record of civilian trials. The military commissions at Guantanamo Bay have only produced five convictions since 9/11, including three plea bargains. Two of the convicted men served short sentences and are already free. Meanwhile, civilian trials have convicted scores of terrorists in that same time period — without producing drama or propaganda. The Ghailani case reminds us that even though military commissions might sound tougher than civilian courts, they are not.

Critics decry the fact that Ghailani was only convicted on one of the 285 counts that he was indicted on. They say that shows the weakness of the civilian court — as if only one life sentence is not enough. In the end, the result is the same: Ghailani will spend his remaining days in supermax prison with the likes of the Unibomber.

Others bemoan the fact that evidence was not introduced into the case because it was obtained illegally through torture. Yet Judge Kaplan admitted that rules of evidence would have been much the same in a military commission. The fact that Ghailani was convicted by a prosecution that had one legal hand tied behind its back due to the sins of the past is a tribute to civilian courts, which remain the most effective tool in dispensing effective, legitimate justice to terrorism suspects.

This leads me to the moral victory in the Ghailani trial. Despite the exclusion of evidence elicited through torture, Ghailani still ended up receiving a life sentence. In other words, Ghailani received a fair trial, was convicted and received a life sentence despite the fact that the strongest evidence against him was withheld. The American legal system stuck to its principles, based on the United States Constitution, and still won a life sentence. To me, that’s the definition of justice.

Looking more broadly, the Ghailani verdict reminds us that the legal system — along with our intelligence, military and diplomatic resources — is an essential component of America’s security apparatus. Bypassing our legal system and resorting to military commissions, perceived by many in and outside of the United States as ineffective, or worse, illegitimate, because they sound “tough,” is a bad move and one that ignores the facts in favor of rhetoric.

The case of Ahmed Ghailani saw justice served and underscores the effectiveness our legal system — both in individual cases and in winning the war of ideas. The overall lesson from the Ghailani case is that Americans should collectively have faith in, and admiration of, the U.S. criminal justice system — after all, it’s doing more than military commissions ever did to keep us safe.


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