Balkinization  

Tuesday, January 25, 2011

Ghailani and the Lost Lesson of Federal Prosecutions

Jonathan Hafetz

Federal district judge Lewis A. Kaplan today sentenced Ahmed Khalfan Ghailani to life in prison for his role in the 1998 bombings of two U.S. embassies in East Africa. To date, Ghailani is the only Guantanamo detainee to be prosecuted in federal court.

Ghailani’s case demonstrates the feasibility of Article III trials for even the most challenging terrorism cases. Ghailani’s prosecution was severely compromised by his prolonged imprisonment in a secret CIA jail and at Guantanamo, all while he was under federal indictment. Ghailani’s coercive interrogations led to the exclusion of one government witness; two other witnesses who had testified against Ghailani’s co-defendants died during Ghailani’s years of extrajudicial detention. Although the jury acquitted Ghailani of all charges of murder and conspiracy, it still convicted him of a count serious enough to result in a life sentence.

The Ghailani conviction, however, will likely have limited impact, at least in the short term. Defense Secretary Robert Gates is expected to issue an order authorizing new military commission trials at Guantanamo. Congress, moreover, has enacted legislation barring the administration from using defense department funds to prosecute any Guantanamo detainee in federal court for at least the current fiscal year, thus dealing a critical blow to Attorney General Holder’s plan to prosecute Khalid Sheikh Mohammed and the other alleged 9/11 plotters.

Stripped to its essence, the choice is as follows. Should the United States charge those responsible for the worst domestic terrorist attacks in the nation’s history in a time-tested and credible adjudicatory system? Or should it instead continue to hold them in legal limbo (via military detention) or try them before military tribunals whose rules remain in flux and legitimacy open to question? Law and logic dictate the former. But if past is prologue, partisan gamesmanship and the politics of fear will continue to prevail, and federal prosecutions of Guantanamo detainees will remain the exception not the norm.

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