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Ghailani Verdict Rekindles Debate Over Civilian Trials for Terror Suspects

November 18, 2010 at 3:44 PM EST
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The Ahmed Ghailani verdict on Wednesday reignited debate on whether civilian courts should handle terror suspect cases instead of military tribunals. Ray Suarez leads a debate between former U.S. Attorney General Michael Mukasey and Eugene Fidell, president of the National Institute of Military Justice.
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JEFFREY BROWN: And we turn to a verdict in a federal terrorism trial and what it could mean for prosecuting other alleged terrorists. Ray Suarez has that story.

RAY SUAREZ: It’s been a dozen years since the devastating attacks on the U.S. Embassies in Kenya and Tanzania — 224 people were killed, including 12 Americans.

But, on Wednesday, Ahmed Ghailani was acquitted on all but one of almost 300 charges. He was accused of buying the truck and explosives used in one of the bombings. A federal jury in New York convicted the Tanzanian man of a single count of conspiracy.

Afterward, Ghailani’s attorney said he would appeal that lone conviction.

PETER QUIJANO, attorney for Ahmed Ghailani: At the start of this trial, we believed that Ahmed was truly innocent of all of these charges. Please understand that we still truly believe he is innocent of all of these charges.

RAY SUAREZ: The accused al-Qaida operative was the first Guantanamo detainee to face trial in a civilian court. His case was seen as a test for President Obama’s policy of moving away from military tribunals.

U.S. PRESIDENT BARACK OBAMA: 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.

RAY SUAREZ: But the Ghailani verdict casts a new shadow on plans to try other Guantanamo suspects, especially Khalid Sheikh Mohammed, the accused mastermind of September 11.

New York Congressman Peter King, incoming chair of the House Homeland Security Committee, said the verdict — quote — “demonstrates the absolute insanity of the Obama administration’s decision to try al-Qaida terrorists in civilian courts.”

Ghailani will be sentenced on January 25. He faces a minimum of 20 years and a maximum of life in prison.

Two views now on the implications of the Ghailani trial and the verdict. Michael Mukasey was attorney general during the last year of the Bush administration. He is now an attorney in private practice in New York City. Eugene Fidell is president of the National Institute of Military Justice, and he’s a senior research scholar at Yale University Law School.

And, Eugene Fidell, let me begin with you. What, if anything, does the Ghailani verdict tell us about the idea of trying terrorist suspects in civilian courts?

EUGENE FIDELL, president, National Institute of Military Justice: Ray, I think the answer to that depends on your perspective going into the case.

From my perspective, the case demonstrates that you can have a highly credible criminal prosecution in federal district court and come out with a successful outcome, namely a verdict in favor of the government, and, at the same time, honor all the guarantees of the U.S. Constitution.

I think that’s a substantial achievement. And, by the way, you can do that without shutting down the island of Manhattan.

RAY SUAREZ: Judge Mukasey, what do you think?

MICHAEL MUKASEY, former attorney general: I think it is — I can agree with Gene Fidell that, to a certain extent, it depends on your perspective going in.

But, beyond that, I think we disagree about just about everything else.

(LAUGHTER)

RAY SUAREZ: So, your perspective going in was exactly the opposite of his?

MICHAEL MUKASEY: Except that the outcome here, it seems to me, drives it home with a sledgehammer.

It’s a less-than-satisfactory outcome to what I think was a very unwise and dangerous gambit, which was to take this prosecution — this case, we already proved that the courts could be used to try this specific charge.

Two defendants were tried in this case already in the Southern District of New York and convicted a couple of years ago. This man was undercharged, not only in this case, but for other acts as well, including being a document forger, a bombmaker. He was so well trusted that he was the cook to Osama bin Laden.

He was ready to start his military commission trial at Guantanamo. All of that was shut down, so that he could be brought here, and essentially used as an example, as it were, of being able to take somebody from Guantanamo, bring him here, and conduct a trial, even though this trial would in no way be comparable to the trial of KSM. And even that experiment went aground.

RAY SUAREZ: Please expand, if you would, on your idea that the outcome tells us something about the process. Would your view of a civilian venue for this case be different if he had been convicted on 100 counts, instead of one?

MICHAEL MUKASEY: No, but I think what it does is illustrate the dangers and the — in this case, the unnecessary dangers, of using a civilian system that excluded a good deal of the evidence against him, obviously didn’t include all of the charges that were pending against him a before military commission.

That was totally unnecessary in this case. I think it also sends a very bad signal to the rest of the world in general and to our adversaries in particular, which is that, if you obey the laws of war — that is, you carry your arms openly, you wear a uniform, you follow a recognized chain of command, and you don’t target civilians — then you’re entitled to be treated in a particular way as a prisoner of war.

But if you violate all of those rules, by golly, we’re going to treat you even better. We’re going to give you a full-dress trial. And that, I think, is a very unwise and dangerous message to send.

RAY SUAREZ: Eugene Fidell, how do you respond to that critique?

EUGENE FIDELL: Well, first of all, it’s amazing. Here we are, it’s almost Thanksgiving 2010, and we’re still dealing with these issues, after years and years.

But, quite seriously, I think that the — the premise of Judge Mukasey’s comment just now was that this would have had a different outcome in a military commission. And I’m in no way persuaded of that. I think you have to assume — and the key sort of legal judgment that Judge Kaplan made in the U.S. District Court in Manhattan was to suppress some evidence that seemed to be the fruits of torture or abusive treatment of a detainee.

The assumption that that evidence would have come in, in a military commission, I think, does a tremendous disservice to the military officers who are serving as judges in the military commissions.

I have no doubt that the same kind of careful consideration that Judge Kaplan, who has been a judge for 16 years, gave to that issue would have been given by the military judges in the military commissions.

RAY SUAREZ: How about that, the assumption that it would have gone differently in another kind of courtroom?

MICHAEL MUKASEY: I think the assumption is entirely warranted.

The touchstone for admissibility of evidence in front of a military commission is reliability and relevance. The witness who was excluded was a volunteer. He wasn’t treated or maltreated at all. He would have come — his identity became known as a result of aggressive questioning. He would have come forward and testified voluntarily. And he was ready to testify in this case.

I have no quarrel with Judge Kaplan’s result, with his reasoning. I have very high regard for him. He’s a former colleague. But I have no doubt at all that the result would have been different in a military commission, and, certainly, there would have been additional charges before a military commission that could not be tried in this case, and of which this jury could not be made aware.

RAY SUAREZ: But haven’t we already seen during this process that military commissions aren’t necessarily the friendliest place to introduce evidence that may have been gained under very intense physical coercion either?

MICHAEL MUKASEY: When you’re talking about evidence gained from the person who is on trial, that’s correct. But when you’re talking about evidence gained from third parties as a result of aggressive questioning, that’s an entirely different story.

RAY SUAREZ: An important distinction, Eugene Fidell?

EUGENE FIDELL: Well, I think it is — let me refocus it, Ray, if I can.

The problem here was that the government, I think, didn’t know about this other witness, but for the fact that they obtained certain information from Mr. Ghailani himself by improper means. So, it’s a sort of shinbone-connected-to-the-thigh-bone problem, but, at the end of the day, a district judge ruled correctly, I believe, having read the opinion, that it was improper to accept evidence that the government wouldn’t have had but for abusive treatment.

So, that’s — that’s — and if Judge Mukasey and I have a disagreement on that, well, so be it, and I respect his judgment. He’s been a judge. But I think that’s a very important proposition. And, frankly, I think the military judges who have been involved at Guantanamo — and I have been down there — I have observed trial proceedings at Guantanamo — have a dedication to the rule of law.

And I don’t think that the evidence that Judge Kaplan suppressed would have been tolerated by a military judge.

RAY SUAREZ: Gentlemen, in the brief time we have left, I would like to hear from both of you on where this result leaves us and the future of these trials. There are still many defendants left to go.

Judge Mukasey?

MICHAEL MUKASEY: Again, I don’t think this case is in any way analogous to the cases of the other defendants, if you’re talking about the other people at Guantanamo.

They have — unlike Ghailani, have not yet been indicted. There’s been — the cases being brought against them were not investigated the way this case was for presentation in a federal court. The evidence was gathered on the battlefield, under conditions that in no way are — would necessarily pass muster under the federal rules.

And if we’re going to — if there were problems here, there are going to be enormous problems presenting evidence that was gathered on the battlefield against Khalid Sheikh Mohammed and the others, notwithstanding that it is both reliable and relevant.

RAY SUAREZ: Eugene Fidell?

EUGENE FIDELL: Well, there’s clearly going to be a lot of lawyering in future cases. The attorney general, Mr. Holder, is going to have some hard decisions to make.

He’s obviously taking some heat right now, as a result of the outcome here. But I would like to — your question, Ray, was, where does this leave us? And I think it’s important, as we wrap this conversation up, to focus on where it leaves Mr. Ghailani.

He’s facing a minimum sentence of 20 years and up to life. And that, I think, is the takeaway from this case.

RAY SUAREZ: Eugene Fidell, Michael Mukasey, gentlemen, thank you both.