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Holder Strikes Out in First Gitmo Civilian Trial

Ahmed Ghailani, a key figure in the 1998 bombings of U.S. embassies in Africa, was cleared by a jury of 276 murder and attempted murder counts.

by
Clarice Feldman

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November 18, 2010 - 12:00 am
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And from the jury’s action it appears clear that without the evidence barred by the civilian rule that the government cannot use evidence which it obtained by improper interrogation means — even if that evidence is sound in every way — the jury had insufficient evidence to find the defendant guilty of the murder charges:

The first former Guantánamo detainee to be tried in a civilian court was acquitted on Wednesday of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. …

The defendant, Ahmed Khalfan Ghailani, 36, was convicted of one count of conspiracy to destroy government buildings and property. He was acquitted of four counts of conspiracy, including conspiring to kill Americans and use weapons of mass destruction. …

Mr. Ghailani faces a sentence of 20 years to life in prison.

The New York Times suggests this may fuel new debate about where these people should be tried. I think that’s an understatement of the first rank. Sane legal scholars think the military tribunal option is adequate and preferable.

The Times also suggests that the judge’s ruling which permitted the trial to go forward over the defense objections of torture while in U.S. custody (a charge I do not believe he could or did substantiate) could be seen to pave the way for a civilian trial of Khalid Sheikh Mohammed.

Of course, Mohammed was, as we know, waterboarded before confessing, while Ghailani, who merely remained in sustained detention, never was.

But this is all picking around the edges.

The notion that people like this should be tried under the rules of U.S. criminal law applicable to civilians is the sort of preposterous silliness that defies reason.

That even if they are acquitted in civilian courts we can and likely will continue to hold them in indefinite detention seems to me to underscore that these are show trials to appeal to the president’s left base. I don’t understand how the attorney general and president can think there is any benefit to this costly, risky enterprise. On the one hand, they stand to turn commonsense legal rulings on their heads and make martyrs of murderous thugs. On the other hand, the whole show trial aspect of it all undermines the rule of law. If you are going to try these men in civilian courts with rules designed to rein in law enforcement officials, not soldiers in battle who must operate under different circumstances, you should be prepared to take the consequences of releasing them to do more acts of murder and terrorism if you lose. If you are unwilling to take that very substantial gamble with national security, try them in military courts, which have more appropriately fashioned rules to make sure that evidence is sound and obtained in a manner more suited to the circumstances than those designed to deal with, say, armed robbery.

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Clarice Feldman is a retired litigation lawyer who lives in D.C. She's a news junkie addicted to the internet.
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